PD-0160-24 05/08/2024
1. “The Fourteenth Court’s opinion is based on false statements of the record.”
2. “The Fourteenth Court erred by affirming the trial court on a theory of law not applicable to the case. The Fourteenth Court affirmed on a legal theory that was not litigated below because the appellee had disclaimed it, thus the State was not put on notice of the need to adduce evidence refuting the theory.”
Hatter was charged with two misdemeanor DWIs and felony assault of a peace officer. The State offered to dismiss the felony if Hatter pleaded guilty to the misdemeanors. Hatter’s separate misdemeanor attorney was opposed to this. With negotiations ongoing and the felony case set for trial, the felony prosecutor dismissed the felony while officially reserving the right to refile. In hindsight, the felony prosecutor said he had no intention of refiling and thought it was unfair to proceed to trial on a case the State had offered to dismiss. Separately, the misdemeanor prosecutors dismissed the misdemeanor cases. The officer complained, and the felony charge was reindicted. Hatter filed a motion for specific performance. The trial court heard evidence and determined that the felony prosecutor had promised to dismiss and not refile. The trial court ordered the case dismissed over the State’s objection that the prosecutor’s promise could not be binding without Hatter giving some kind of consideration or the trial court approving a plea agreement.
The State appealed. The Court of Criminal Appeals rejected the Fourteenth Court of Appeals’ original holding of a binding immunity agreement and remanded for consideration of whether the dismissal was correct under any applicable legal theory, including a binding plea agreement. On remand, a divided court of appeals held that there was a binding plea agreement that the State reneged on and that the State had made it impossible for Hatter to perform his side of the bargain by dismissing the misdemeanors. It characterized the trial court’s ruling on the motion for specific performance as an approval of the plea bargain and affirmed the dismissal. The dissent said the majority had grossly overstated the record, noting that there was no evidence of mutual promises, exchange, or acceptance of the offer—only the mere extension of an offer.
The State argues that the majority’s contention that there was an agreement is a false statement. It reiterates that the evidence shows only the prosecutor’s unbargained-for promise and the absence of agreement by Hatter’s misdemeanor attorney. In its view, characterizing the prosecutor’s impression that Hatter would eventually plead guilty to the misdemeanor charges as evidence of Hatter’s acceptance was a “materially false description of the prosecutor’s testimony.” The State says the majority ignores the defense’s position (before remand from the Court of Criminal Appeals) that the prosecutor’s unilateral promise should be enforced despite Hatter’s failure to agree to plead. The State also contends that the majority’s claims about the State making it impossible for him to perform (by unilaterally dismissing the misdemeanor charges before he could plead guilty to them) are not supported by the record. It contends that judicial opinions based on false statements “are a greater threat to the integrity of the appellate system than any legal error.” In its second issue, the State argues that it is a manifest injustice to affirm the trial court’s dismissal on a plea-bargain-agreement theory because the State was never on notice of that theory and was deprived of the chance to put on evidence to disprove it. The State contends it was a theory that felony defense counsel expressly said did not apply.
