Ex Parte McJunkins
926 S.W.2d 296
Tex. Crim. App.
1996
Check Treatment

*1 illustration, of un- virtually mandates the dissemination employer an hires violent first reports child molestation. knowing confirmed of employee, the violent tendencies injures employee an employee, ¶ 302B, D, e, § ill. 9. This other. Id. cmt. duty negligent does not to avoid illustrate view, creating a my errs in In the Court negligent

recommendation —it illustrates negligent common law cause of action for doctrine, hiring the Court concedes non-pecuniary in loss misrepresentation applicable not to this case. S.W.2d duty Because no such has existed cases. illustration, a common car 290. the next tomorrow, today exist before should way by places passenger rier its in harm’s judg- appeals’ I would reverse the court depositing sleeping passenger near entirety. respectfully in ment its dissent. are known to woods which violent hobos ¶ 302B, e, D, ill. But § cmt. 10. reside. Id. already have a well-defined

common carriers irrespective

duty passengers of sec Transit

tion 302B. See Houston Co.

McQuade, (Tex.Civ.App.— d)(duty discharge ref'

Galveston writ reasonably place). safe passengers Ex James Howard McJUNKINS. illuminating, These are but do illustrations support holding. the Court’s To No. 72410. contrary, considering present facts of the Texas, Appeals of Criminal case, these illustrations confirm Banc. En basing holding on its section Court errs (Second). 302B the Restatement June 1996. in this The Court’s misdirection case First,

troubling respects. it in two fails duty

limit the those harmed Council’s

by reasonably relying the referral. At if it section explicitly adopted

least duty limited. Restate

Council's would so 311(1) (1965). § (Second) ToRts negligent

Even under the cause of action context,

misrepresentation in the commercial previously recognized,

which we have

duty has limited those who suffer been justifiably relying represen on the

loss while Tyler,

tation. Land Bank Ass’n Federal establishes no 825 S.W.2d at The Court duty in this newly limit to its found contrary, appears To it that once

case. another, organization negligently refers

an inju any resulting personal

will be liable for any irrespective party’s reliance.

ries Court,

Second, duty by the established contrary, en

despite protestations its poten obligation

tails an to warn of another’s propensities. The ac

tially dangerous

knowledges spreading rumors about can result the unde

child molestation reputa of an individual’s

served destruction

tion, 291-292, but its decision S.W.2d

fact of and conclusions law which was found: single finds it

The Court conducted a hear- ing on the matter March 1990. The Court further finds that after the Defen- evidence, stipulations signed dant of and jury waived and trial in both indictment causes, pleas accepted the both guilty, contemporaneously, this same hearing. Based on the recommendation of attorney, imposed the State’s the Court #23706, life sentence in Cause and a life McJunkins, Lovelady, James pro Howard # sentence Cause 23707 to run consecu- se. tive. the Based on recommendation of the Batchelor, Atty., Patrick C. Dist. Corsica- attorney, State’s on March na, Paul, Austin, Atty., Matthew State’s for signed dismissing Capi- an order the the State. against tal pending Murder Defendant. agree

We that the cumulation orders are OPINION 3.01, 3.02, §§ improper under and 3.03 and reasoning out in set LaPorte. KELLER, Judge. Sims, post-conviction

This is a application Ex S.W.2d 803 corpus writ of pursuant (Tex.Crim.App.1993), habeas filed to Arti- we held that where the 11.07, cle single proceeding V.A.C.C.P. In a record possi reflects a for the Applicant bility sentences, ag- improper was convicted of murder and consecutive ref gravated robbery in “stacking” cause numbers ormation to order delete was 23707, respectively, following remedy. Rather, and not plea proper par bar- “[t]he gain by a single capital positions prior murder indict- ties must to be returned Sims, plea to plea guilty.” dismissed. Pursuant to that bargain, punishment plea 805. In bargain was assessed at life im- Sims the was for the prisonment offense, each with the sen- of consecutive sentences whereas consecutively tence in to run with in the that instant case the was for assessed in 23706. The cumulation of consecutive sentences. part plea agreement. sentences was of the In Sims also if we stated that we were appeal.

There was no simply order, only delete cumulation detrimentally the State be would bound Applicant challenges that of the aspect that agreement. of the plea bargain which requires 23707 to run 868 S.W.2d at That is a cumu- 805. consecutively under LaPorte obviously lation order is benefit the State’s (Tex.Crim.App.1992), S.W.2d 597 because he Applicant’s and to disadvantage. We con- single was tried in a criminal action for of requiring cluded that deletion the order arising fenses out of epi the same criminal logi- consecutive would sentences Code, 3.01, §§ sode. See V.T.C.A. Penal 3.02 cal nor fair. Id. and Applicant pleas 3.03. contends that his guilty par should withdrawn and both reply The State has filed a positions ties should be returned to their present application, writ in- and has not prior pleas guilty. The trial court that it formed this Court would forebear findings has made no of fact and conclusions relinquish agreement that of the benefit pursuant present of law applica writ of which deprived will be if the tion. Spe- cumulation is held order to be invalid. previous application, performance possible,

Pursuant writ cific deletion of however, findings unfairly trial court entered inure to order would

Applicant, expressed guilty, has not set aside ordered relinquish forebear its desire to Sims answer the instruments aspect plea agreement requires each case. 868 S.W.2d at Conse- consecutively. run Conse- quently, *3 majority appropri- under Sims the quently, judgments in numbers the cause ately aside in cause sets the nos. from 13th Dis- 23706 and 23707 the Judicial 23,706 23,707 and re- orders County aside trict Court of Navarro are set County answer turned to Navarro the Applicant is that returned and it ordered However, cases. for informations these County custody to the of the Navarro sheriff reasons, following remedy I the believe in these to answer the instruments unique the unacceptable is under circum- causes. is stances when the defendant ini- opinion to the Copies of this shall sent tially charged capital with a offense. Justice, Department of Criminal Insti- Texas Divisions. tutional and Pardons and Paroles II. prose- Initially, option had the the State

DISSENTING OPINION cuting applicant capital for But the BAIRD, Judge, dissenting. relinquished option in the State that capital Applicant initially indicted for was bargain agreement. because 23,647. no. murder cause The capital prosecu- the nature of murder bargain agreement a entered into tions, the has where dismissed the whereby agreed to dismiss the State a capital allegations pursuant murder appellant agreed capital murder bargain is agreement that later determined plead guilty separate offenses of unenforceable, the cannot to be subse- murder, 23,706, and aggravated cause no. prosecute quently seek to the defendant for 23,707, robbery, punishment no. cause such action violates murder because con- offense would be assessed at for each against prohibition Due Process Clause’s finement for life and that sentences prosecutorial vindictiveness. would be consecutive. Pearce, 711, In North v. 395 U.S. Carolina relief, Applicant corpus now seeks habeas (1969), 2072, 23 L.Ed.2d 656 89 S.Ct. contending order is invalid Due Supreme Process Clause 3.01, Court held §§ Tex. Ann. 3.02 under Penal Code punished a for is when defendant is single violated 3.03 he was tried in a because successfully exercising his constitutional or arising for out of the criminal action offenses Id., 724, episode. agree rights. all 395 at 89 statutory same criminal We U.S. (Tex. 412 v. 840 S.W.2d under LaPorte S.Ct. Cr.App.1992), the cumulation order is invalid. law, then, requires that process of Due majority part company Where with against a defendant hav- vindictiveness ap remaining on the issue of what relief successfully first convic- ing attacked his propriate. he play part tion no the sentence must a trial. And since the after new receives I. may unconstitu- fear of such vindictiveness (Tex.Cr. Sims, In Ex of the tionally a defendant’s exercise deter identical situa App.1993), we addressed the collaterally attack his right appeal capital murder The State dismissed the tion. conviction, requires process also first due guilty to two charges against pled he apprehension freed of a defendant be sen separate offenses of murder and the part on the retaliatory motivation were cumulated. Under LaPorte tences judge. sentencing However, be was invalid. cumulation order [Emphasis To make sure that added.] Ibid. possibility of cause the consecutive part plays no in a harsher vindictiveness agreement and was sentence, “whenever a the Court concluded specific performance upon a obtained, judge severe sentence par imposes more not be we returned could trial, reasons for plea of after a new positions prior to the defendant ties to their affirmatively so doing appear apprehension his must that a be freed of [in defendant by prosecutor. record].” 395 U.S. 89 S.Ct. at from Ibid. retaliation 2081. The Due Process Clause is not offend Consequently, though even there no evi- was by possibilities punish ed all vindictiveness, increased Supreme dence of appeal, by retrial after those constitutionally permissible held it “not pose a realistic likelihood of vindictive respond Perry’s the State invocation See, Smith, ness. Alabama v. 490 U.S. statutory right appeal bringing his (1989), L.Ed.2d 865 charge against more serious him....” Ibid. cases cited therein. Therefore, where has the State dismissed Blackledge Perry, U.S. *4 capital allegations pursuant a murder to 2098, (1974), S.Ct. 40 L.Ed.2d 628 the Su- bargain agreement appeal that on or collater preme process Court considered whether due unenforceable, al attack found to is Pearce, required analogous a rule to in situa- subsequently prosecute seek to cannot prosecutors tions opportunity where had the capital the defendant for murder because 27, Perry, at vindictiveness. 417 94 U.S. prosecutorial such action would constitute Perry S.Ct. at 2102. was convicted misde- State, vindictiveness. Ronk v. 578 S.W.2d law, meanor assault. North Under Carolina (Panel and, (Tex.Cr.App.1979) Opinion); 120 Perry a was entitled to trial novo de on State, Doherty (Tex.App.— 892 13 S.W.2d However, appeal. appeal while his 1994). ap Houston Consequently, [1st Dist.] pending, felony the State obtained a assault remand, plicant, may prosecuted on in against Perry covering indictment the same 23,706 23,707, cause nos. but cannot be Perry pled guilty felony, conduct. to but prosecuted capital Id., sought later habeas relief. at U.S. 23-24, 94 S.Ct. at Supreme 2100. The III. applied held prosecutors: Pearce to agreements upon Plea are based prosecutor clearly A has a considerable exchange an When a benefits. defendant discouraging stake in the convicted misde- a attacks conviction based bar- appealing meanant from and thus obtain- gain agreement, he attacks the be- benefit ing Court, a trial de Superior novo in the upon him stowed and seeks to withdraw from appeal since an clearly require such will bargain. his end of the Shannon v. expenditures prosecutorial increased re- 708 S.W.2d 851 (Tex.Cr.App.1986). sources before the defendant’s conviction successfully challenges When a defendant final, may becomes even result plea bargain agreement, appropriate formerly going convicted defendant’s free. remedy specific performance, if possible, And, prosecutor if the has the means or, not, if withdrawal of the and return readily at hand discourage ap- to Id., original positions. their to peals by “upping through the ante” a fel- — my opinion 708 S.W.2d at 852. In ony indictment whenever a convicted mis- light these two alternatives is in viable pursues appellate demeanant his statutory type in circumstances this remedy State can insure that —the of case. hardy most will defendants brave the haz-

ards de of a novo trial. First, pertaining specific performance. 27-28, Perry, 417 U.S. at 2102- Because the cumulation order was autho- Further, Supreme law, Court held evi- rized the order is invalid and this performance dence of bad faith or specific maliciousness the Court cannot order prosecutor Id., agreement. required. was not the instant Never- 28-29, theless, fully specific performance U.S. 94 S.Ct. at 2102-2103.1 could be may Because the fear of such if vindictiveness realized we ordered the set aside, unconstitutionally applicant agreed again plead deter defendant from ex- ercising right appeal collaterally his guilty informations and life receive conviction, process requires attack due his in each sen- case and have those noted, Perry. 1. As the in court none was shown 417 U.S. at 94 S.Ct. at 2102. no properly than the

tences cumulated under authori benefit better (Tex. Pharr, Therefore, ty parte of Ex at all. would hold that benefit Cr.App.1995). agrees this cannot in cases where dismiss guarantee result, highly exchange and I it capital find for cu- murder agree gave improbable that would be so rise mulated sentences for offenses able; if he so inclined he would not charges, proper were murder sought have habeas relief this case. remedy is to delete the cumulation order. Accordingly, expressly I would overrule Ex Second, parties can be re- whether the 868 S.W.2d 803. “original depends positions” turned York, on that term. Santobello v. New comments, I respectfully dis- With these 92 S.Ct. 30 L.Ed.2d 427 U.S. sent. (1971), charge to a pled defendant lesser prose- exchange agreement by for an MALONEY, JJ., join OVERSTREET make cution a recommendation on opinion. punishment. When the Court invalidated that, plea, noted should the defendant *5 permitted plea, be to withdraw his he would original charge, not the re-

replead charge. at 263 n.

duced 404 U.S. at 499 n. 2. here,

unique circumstances may original position its not return to applicant of prosecuting PLATA, Appellant, Luis Alberto II, Instead, returning supra. See parties original positions to their is limited to

returning applicant plead to the informa- Texas, Appellee. The STATE aggravated murder and rob- tions No. 0480-94. remand, bery. applicant On can demand a those he can trial each case. At trials be Appeals of Texas. Court Criminal charged convicted of the offenses or lesser offenses, acquitted; possibly he can June a sentence than confinement for receive less and, life; there is the sentences Therefore, my

would not be cumulated.

opinion, returning origi- positions impossible

nal either or would operate

result windfall for detriment of the State.

Consequently, of the two tradition- successfully challenged plea

al remedies for agreements viable in this situa- are agreements are

tion. While principles, they

based contractual blindly princi- applied if those

should mutual

ples would result the denial of the case, bargained

benefits for. the instant potential is the for the State to lose all

there for, namely bargained find-

of the benefits it

ings guilt accompanied by life two sen- prohibited While this

tences. order, enforcing

law from partial that in these cases a

believe