Granting of deferred prosecution by prosecutor must
be in writing, signed and filed in the record of the cause to be enforceable.[In
the Matter of R.C.](10-1-6)
On February 4, 2010, the Corpus Christi Court of
Appeals held that while a prosecutor has the discretion to defer prosecution of
a juvenile without court approval in certain circumstances, the agreement must
comply with Tex.R. Civ. P. 11, to be enforceable.
10-1-6. In the Matter of R.C., MEMORANDUM,
No. 13-08-00334-CV, 2010 WL 411873 (Tex.App.-Corpus Christi, 2/4/10).
Facts: Appellant and his fraternal twin brother
were born on March 19, 1991. On August 24, 2007, the juveniles were arrested and
placed into custody. Identical petitions were filed on August 31, 2007, alleging
that each brother intentionally or knowingly caused the penetration of the
sexual organ of S.G. (also 16), who was younger than 17 years of age, and not
the spouse of the respondent, by respondent's sexual organ. On August 29, 2007,
an Order of Detention was entered and hearing set for September 10, 2007. That
hearing was conducted and another Order of Detention was signed and entered.
After another hearing September 24, 2007, the two juveniles were ordered
released on house arrest. A pre-trial hearing was set October 1, 2007, where the
juveniles and their attorney appeared, announced ready for trial, and demanded a
trial by jury. Per local practice, the case was transferred from the County
Court at Law to the District Court of San Patricio County. The case was set for
jury trial on October 22, 2007. However on October 2, 2007, the county
attorney's office requested the appointment of a special prosecutor who was
board certified, which request was granted. The special prosecutor requested a
continuance because of a conflicting setting, and to obtain additional time to
prepare. The unopposed motion was granted.
The case was reset to January 11, 2008. At the January
trial setting, a tentative settlement was reached between the special prosecutor
and defense attorney deferring prosecution for a period of six months upon the
juveniles agreeing to voluntary supervision by the San Patricio County probation
officer and to abide by a list of specified conditions. No record was made of
the agreement, and no written form of agreement was signed at that time. Later
that day, an agreement was signed by appellant, his brother, their
parent/guardian, and a probation officer. The agreement was not signed by the
special prosecutor, defense counsel, or the judge. The form agreement,
apparently prepared by a probation officer, provided for approval and signature
of the judge, but not for the prosecutor. Two judges later refused to approve
the agreement. The special prosecutor and defense counsel later professed
ignorance of any requirement for the judge's signature or approval. A notice of
setting for trial/dismissal/status was set for April 21, 2008. Defense counsel
denied any knowledge that the agreement was not in force until April 2008.
Defense counsel also asserted that the probation officer indicated that neither
the prosecutor's nor the judge's signature was required.
On April 28, 2008, appellant filed a motion to enforce
the agreement to defer prosecution and alternatively to dismiss for want of a
speedy trial. Before that date, the case had already been set for a jury trial
on May 19, 2008. At the trial setting, a jury was waived, and the case tried to
the court.
Held: Affirmed
Memorandum Opinion: Appellant argues that under
the family code, the prosecutor, without court approval, may agree to defer
prosecution. SeeTex.
Fam.Code Ann. § 53.03(e), (g) (Vernon 2006). The
family code does provide in pertinent part: A prosecuting attorney may defer
prosecution for any child.
Id. at § 53.03(e). As
appellant points out, this power is denied if the offense is under certain
provisions of the penal code, or is a third or subsequent offense under certain
provisions of the Texas Alcoholic Beverage Code. Id. at
§ 53.03(g).
Appellant acknowledges that the trial court may defer
prosecution at any time for an adjudication that is: (1) to be decided by a jury
trial before the jury is sworn; (2) for an adjudication before the court, before
the first witness is sworn; and (3) for an uncontested adjudication before the
child pleads to the petition or agrees to a stipulation of evidence.
Id. at § 53.03(i). Appellant
appears to concede in his brief that in the procedural context of a demand or
insist that a jury trial is to be conducted in the case that the Court
may reject an agreement of the application for deferred prosecution. (Emphasis
in original.) The appellant had demanded a jury trial twice in this proceeding.
Both appellant and the State agree, without citing
authority, that the correct standard of review is abuse of discretion. In
analogous situations, the abuse of discretion standard has been used in juvenile
proceedings. See
In re B.P.H., 83 S.W.3d 400, 405 (Tex.App.-Fort Worth
2002, no pet.) (abuse of discretion review applies to
motions to quash petitions in juvenile cases). An abuse of discretion standard
is typically applied when a trial court has discretion either to grant or deny
relief based on its factual determinations.
In re Doe, 19 S.W.3d 249, 253 (Tex.2000)
(citing
Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998)).
A trial court abuses its discretion when its decision is arbitrary,
unreasonable, or without reference to any guiding rules or legal principles.
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000).
Even where a trial court gives an incorrect legal reason for its decision, the
trial court's assignment of a wrong reason is not automatically reversible
error.
Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex.App.-
Beaumont 1996, writ denied);
Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex. App
.-Dallas 1992, no writ). A trial court does not abuse
its discretion if it reaches the right result, even where that result is based
upon an incorrect legal reason; when a trial court gives an incorrect legal
reason for its decision, we will nevertheless uphold that decision on any proper
grounds supported by the record.
Luxenberg, 835 S.W.2d at 142.
A judge's decision whether a settlement agreement should be enforced as an
agreed judgment or must be the subject of a contract action requiring additional
pleadings and proof is subject to the abuse of discretion standard of review.
See
Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659,
(Tex.1996).
Appellant contends that the record supports his
position that the deferred prosecution agreement, which was not executed by the
prosecutor or approved by the judge, established his entitlement to enforcement
of the agreement. We disagree.
Family code section 51.17, entitled
Procedure and Evidence, provides: (a) Except for the burden of proof to be
borne by the state in adjudicating a child to be delinquent or in need of
supervision under Section 54.03(f) or otherwise when in conflict with a
provision of this title, the Texas Rules of Civil Procedure govern proceedings
under this title.
Tex. Fam.Code Ann. § 51.17 (Vernon 2006).
For a settlement agreement to satisfy the requirements of rule 11 it must be:
(1) in writing; (2) signed; and (3) filed with the court or entered in open
court prior to a party seeking enforcement.
Tex.R. Civ. P. 11;
Staley v. Herblin, 188 S.W.3d 334, 336 (Tex.App .-Dallas,
2006, pet.denied) (citing
Padilla v. LaFrance, 907 S.W.2d 454, 461, (Tex.1995)).
This rule has existed since 1840 and has contained the filing requirement since
1877.
Padilla, 907 S.W.2d at 461
(citing
Kennedy v. Hyde, 682 S.W.2d 525, 526 (Tex.1984)
(tracing the history of
Rule 11)).
The rationale for the rule is straightforward:
Agreements of counsel, respecting the disposition of causes, which are merely
verbal, are very liable to be misconstrued or forgotten, and to beget
misunderstandings and controversies; and hence there is great propriety in the
rule which requires that all agreements of counsel respecting their causes shall
be in writing, and if not, the court will not enforce them. They will then speak
for themselves, and the court can judge of their import, and proceed to act upon
them with safety. The rule is a salutary one, and ought to be adhered to
whenever counsel disagree as to what has transpired between them. Id. at
460-61 (citing
Birdwell v. Cox, 18 Tex. 535, 537 (1857)).
In support of his arguments, appellant cites
Santobello v. New York, 404 U.S. 257, 262 (1971).
This opinion holds that when a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled. Id. In
Santobello, after negotiations, the assistant district attorney in charge of
the case agreed to permit petitioner to plead guilty to a lesser-included
offense, conviction of which would carry a maximum prison sentence of one year.
Id. at 258. The prosecutor agreed to make no recommendation as to the
sentence. Id. At the sentencing hearing, a second prosecutor, apparently
unaware of the prior agreement, recommended the maximum sentence of one year,
which the court then imposed.
Appellant also cites Gibson v. State, for the
proposition that if for some reason the prosecutor does not carry out his side
of the agreement, the defendant is entitled to have the agreement specifically
performed or the plea withdrawn, whichever is more appropriate under the
circumstances. See
Gibson v. State, 803 S .W.2d 316, 318 (Tex.Crim.App.1991)
(citing
Santobello, 404 U.S. at 263;Ex
parte
Adkins, 767 S.W.2d 809, 810 (Tex.Crim.App.1989);
Shannon v. State, 708 S.W.2d 850, 851 (Tex.Crim.App.1986)).
Under the circumstances of Gibson, where appellant had already served a
substantial portion of his sentence under the guilty plea, the only appropriate
remedy is specific performance. Id.
Neither case is on point. Both cases were adult
criminal proceedings and not juvenile proceedings. Cf. Vasquez, 739
S.W.2d at 42. Both cases involved a guilty plea made in open court, relying upon
the representations of the prosecutor. Furthermore, as we discussed, to be
enforceable in a civil context, the agreement must comport with
rule 11.
Tex.R. Civ. P. 11; In the
Interest of M.S., 115 S.W.3d 534, 543 (Tex.2003).
In the instant case, not even the special prosecutor's signature appears on the
agreement. Appellant's agreement was not a plea bargain. SeeTex.Code
Crim. Proc. art. 26.13. (Vernon 2006). Finally,
appellant actually received a full trial, one of the two remedies suggested in
Gibson. Gibson, 803 S.W.2d at 318.
More recently, the supreme court has again emphasized
the civil component of juvenile cases. See
In re Hall, 286 S.W.3d 925, 927 (Tex.2009)
(because juvenile proceedings are civil matters, the Court of Criminal Appeals
has concluded that it lacks jurisdiction to issue extraordinary writs in such
cases even in those initiated by a juvenile offender who has been transferred to
the Texas Department of Criminal Justice because he is now an adult) (citing
Ex parte Valle, 104 S.W.3d at 889); see also Vasquez, 739 S.W.2d at
42 (recognizing that delinquency proceedings are civil in nature).
Appellant does not contend that the trial court was
without jurisdiction to reject the purported agreement to defer prosecution or
enforce the same agreement. Indeed,
section 53.03 of the family code
authorizes trial court approval under the circumstances of this case.
Tex. Fam.Code Ann. § 53.03(i).
Conclusion: While we agree with appellant that
section 53.03(e) of the family code
appears to grant the prosecutor discretion to defer prosecution of a juvenile
without court approval in certain circumstances, we need not address this
dichotomy because the agreement or settlement was not enforceable in that it did
not comport with
rule 11. SeeTex.
Fam.Code Ann. § 53.03(e);
Tex.R. Civ. P. 11;
In re M.S., 115 S.W.3d at 543)
(Rule
11 of our rules of civil procedure requires
agreements between attorneys or parties concerning a pending suit to be in
writing, signed and filed in the record of the cause to be enforceable.). We
overrule appellant's first issue.