HATTER, SANITHA LASHAY v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0160-24

THE STATE OF TEXAS

v.

SANITHA LASHAY HATTER, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY

NEWELL, J., delivered the opinion for a unanimous Court.

OPINION

This case is about a plea bargain offer that Appellee never accepted.

The State offered to dismiss a felony assault in exchange for Appellee’s plea

of guilty to two misdemeanor DWI charges. But Appellee never agreed to

plead guilty to the two DWI charges. The State dismissed the felony and DWI
Hatter -- 2

charges but subsequently refiled the felony under a new cause number. In a

motion for specific performance, Appellee sought to enforce the dismissal of

the refiled felony. Appellee alleged that when the prosecutor dismissed the

felony charge, he promised not to refile it despite language in the State’s

motion to dismiss indicating that the State reserved the right to refile. Under

these circumstances, the trial court erred to grant Appellee’s motion to dismiss

the felony charge with prejudice because no enforceable plea agreement

existed. Therefore, we will reverse the court of appeals.

Background

The State charged Appellee with the felony offense of assault of a peace

officer. 10F During plea negotiations, the State offered to dismiss the felony

charge if Appellee agreed to plead guilty to one DWI charge arising out of the

same incident as well as another DWI that Appellee committed after the first.

Appellee’s attorney in the felony case sought to accept the offer, but Appellee

was represented by a different attorney in the DWI cases. Appellee never

agreed to plead guilty to the two DWI charges in exchange for the dismissal

of the felony charge.

Subsequently, however, the State filed a single-page form motion to

dismiss the felony.

1
Tex. Penal Code Ann. § 22.01(b-2).
Hatter -- 3

As shown above, the pre-printed motion to dismiss contained several boxes

that could be marked to indicate the reason for dismissal. The State marked

the option “[o]ther (explanation required)” and next to “explanation:” the

motion stated, “State reserves the right to refile.” The trial court granted the
Hatter -- 4

motion and signed the order dismissing the case. Approximately two months

later, the State refiled the felony assault under a new cause number.

Appellee filed a motion for specific performance seeking to enforce the

dismissal. In the motion, Appellee asserted that the prosecutor had not only

agreed to dismiss the offense, but he had also promised not to refile the case. 2 1F

In a brief in support, Appellee argued that due process compelled specific

performance of the State’s promise not to refile the case after the dismissal.

Appellee also argued that the prosecutor’s promise not to refile constituted a

contract, which the State breached. Appellee’s counsel filed an unsworn

affidavit in support of the motion, which provided the following pertinent

information:

• The Assault of a Public Servant 3 in cause number 1622433
2F

arose out of the same transaction as a misdemeanor Driving
While Intoxicated charge in cause number 2248201. Counsel
was appointed to represent Appellee in the felony assault case.
Appellee subsequently was arrested and charged with another
DWI.

• The offer from the State was that in exchange for a plea of
guilty in the DWI cases, the felony assault case would be
dismissed. However, another attorney represented Appellee on
the DWI charges and was unwilling to agree to the resolution.

• After additional discussion, the felony prosecutor made
multiple promises indicating that he would “not only dismiss
2
The motion asserted that the prosecutor made multiple statements indicating there was a
“gentlemen’s agreement” that the case would be dismissed “no matter what.”

3
As we previously recognized, the parties, at times, and the court of appeals have labeled
the offense as an assault of a public servant but both the original indictment and the record
on appeal for the refiled felony assault case indicate the charge is for assault on a peace
officer. State v. Hatter, 665 S.W.3d 584, 586 n. 1 (Tex. Crim. App. 2023); compare Tex.
Penal Code Ann. § 22.01(b-2) (peace officer), with § 22.01(b)(2) (public servant).
Hatter -- 5

the felony case regardless of the misdemeanor dispositions,
but that he would promise to never re-file the felony case.” 4 3F

The prosecutor told counsel that he would give the reason of
“other” on the dismissal and would write “subject to re-file” but
again promised that the case would not be refiled.

• The felony case was dismissed before the disposition of the
DWI cases. The following month, the DWI cases were
dismissed.

• When the arresting officer learned that all of the cases against
Appellee had been dismissed, she complained, and the
prosecutor was ordered by a superior at the Harris County
District Attorney’s Office to refile the case despite his promises
not to do so.

The trial court held a hearing on Appellee’s motion for specific

performance. 5 4F The prosecutor testified that at the time the dismissal was

filed, he “didn’t believe that subjecting [Appellee] to the potential outcomes

regarding a conviction for assault of a public officer -- a peace officer was

appropriate based on the decision that we had offered to outright dismiss the

case conditioned on a plea to the DWIs.” Further, he testified that he did not

recall using the terms “promise” or “gentlemen’s agreement,” however, it was

his intention not to refile the felony and the decision to refile came from his

superiors. But he said it was possible that the disposition would have been

different had the DWI cases been dismissed prior to the trial date in the felony

assault.

4
The affidavit also stated that the disposition was in the interests of justice because it was
unfair that Appellee’s attorney on the misdemeanor would not cooperate with the plea
bargain.

5
Appellee’s counsel’s affidavit was submitted as a defense exhibit at the hearing on Appellee’s
motion for specific performance.
Hatter -- 6

Ultimately, the State argued that there was no relief that could be

granted under the circumstances. The State argued it could not unilaterally,

without court approval, give a grant of immunity from future prosecution, and

no such agreement was approved by the court. Also, the State argued that

no consideration had ever been received for any promise not to refile.

Appellee argued that the promise not to refile constituted a contract that could

be enforced. The trial court found there was a promise, although the trial

judge remained unsure of whether there was a contract, that could be

enforced. The trial court granted the motion for specific performance and

directed the State to file a dismissal of the felony assault charge. The State

filed an appeal along with an alternative petition for writ of mandamus. 6 5F

Appeal and Remand

On appeal, the State argued that the trial court was without authority

to dismiss the case or order the State to dismiss it because there was no

legally binding agreement between the State and Appellee. The State

maintained that, at most, there was an un-bargained for promise to dismiss

without refiling, which was not enforceable absent performance by the

Appellee. The court of appeals disagreed and found, based on the trial court’s

findings, that there was an immunity from prosecution agreement between

6
State v. Hatter, 634 S.W.3d 456 (Tex. App. – Houston [14th Dist.] 2021, pet. granted). As
to the threshold question of the appropriate remedy for relief, the court of appeals found the
State had an adequate remedy at law by ordinary appeal and therefore dismissed the
alternative petition for a writ of mandamus as moot. Id. at 460.
Hatter -- 7

the State and Appellee, which the trial court approved when it granted the

dismissal and motion for specific performance. 7 6F Therefore, the court of

appeals affirmed the trial court’s order dismissing the felony charge. 8 7F

Justice Jewell filed a dissenting opinion. Justice Jewell concluded that

no immunity agreement existed, noting the State did not consent to the

dismissal of the refiled case and that an immunity agreement requires

consideration, which was lacking. 9 8F The dissent concluded that absent

Appellee having given something in exchange for the prosecutor’s promise,

the promise was not binding on the State. 10 Justice Jewell concluded that
9F

even if there were an immunity agreement, it was not approved in advance

so it would not have been binding. 11 10F

The State sought discretionary review. The State challenged the court

of appeals’ determination that the promise not to refile constituted a

retroactive immunity agreement. This Court agreed that the prosecutor’s

promise to dismiss the assault case and not refile it did not constitute an

immunity agreement. 12 Rather, we concluded that this was the beginning of
11F

7
Id. at 462.

8
Id. at 463.

9
Id. at 466 (Jewell, J., dissenting).

10
Id. at 467.

11
Id. at 469.

12
Hatter, 665 S.W.3d at 594.
Hatter -- 8

a plea-bargain agreement. 13 We remanded to the court of appeals for it to
12F

consider whether the trial court’s “granting Appellee’s motion for specific

performance is correct under any other theory of law applicable to the case,

including but not limited to whether there was an enforceable plea agreement,

and, if so, what were the terms of the agreement, whether either party

breached the agreement, and whether Appellee was entitled to specific

performance.” 14 13F

On remand, the court of appeals held that the trial court acted within its

discretion to determine there was a plea agreement and to order the State to

dismiss the refiled assault case based on that agreement. 15 First, the court
14F

of appeals held that the terms of the plea agreement were clear: in exchange

for dismissal of the felony charge, Appellee agreed to plead guilty to the two

DWIs. 16 The court then held that Appellee’s obligation to plead guilty to the
15F

DWI charges, pursuant to the agreement, was “considered fulfilled” because

the fulfilment of that condition was prevented by the State when it dismissed

the two DWIs. 17 16F The court of appeals concluded the State breached the

13
Id.

14
Id. at 595.

15
State v. Hatter, 681 S.W.3d 885, 893 (Tex. App. – Houston [14th Dist.] 2023, pet. granted).

16
Id. at 892.

17
Id. at 893 (“These [DWI] charges were dismissed by the misdemeanor prosecutor who . .
. operated as an agent of the State. Accordingly, any consideration Appellee was required to
provide to render the agreement enforceable was ‘considered fulfilled.’”).
Hatter -- 9

agreement by refiling the felony case and the trial court acted within its

discretion to grant the motion for specific performance. 18 The State filed a
17F

motion for rehearing, which was denied.

Justice Jewell again dissented. In his view, the record did not establish

the existence of a plea agreement. 19 He argued there was no evidence that
18F

Appellee ever accepted the State’s plea offer, consented to its terms, or made

any mutual promise as would be required for a bilateral contract or plea

agreement. Furthermore, the trial court never accepted a plea agreement. 20 19F

Finally, he concluded that there could be no binding unilateral contract

because Appellee did not give any consideration, e.g., pleading guilty to the

DWIs for the promise to dismiss. 21 While Justice Jewell agreed this became
20F

impossible when the DWI charges were dismissed, he regarded this as

terminating the outstanding plea offer. 22 21F

18
Id. at 892-93.

19
Id. at 893-99. (Jewell, J., dissenting).

20
Id. at 897.

21
Id. at 898.

22
Id. (“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 at any time before the promisee performs and before court approval.
Once the DWI charges were dismissed, the outstanding plea offer necessarily was terminated
and off the table.”).
Hatter -- 10

Discretionary Review

The State sought discretionary review. We granted the State’s petition

which raises the following issues:

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.

The State argues, as Justice Jewell did, that the record refutes the court

of appeals’ conclusion that Appellee had agreed to plead guilty to the DWI

charges or that the State unilaterally withdrew an existing plea agreement.

Also, the State argues that had the State been put on notice before the trial

court that Appellee was alleging that a plea bargain agreement existed it could

have presented evidence refuting the existence of a plea bargain.

Appellee concedes that the lower court mistakenly cites the motion for

specific performance as evidence that a plea agreement had been reached in

this case. 23
22F However, Appellee argues that the record still supports the

conclusion that there was a plea agreement. Appellee argues her obligation

to plead guilty to the DWIs was correctly considered fulfilled when the State

prevented fulfillment by dismissing the two DWIs. Appellee does not squarely

23
Hatter, 681 S.W.3d at 891 (“In her ‘Motion for Specific Performance,’ Appellee asserted
that the parties reached an agreement pursuant to which her felony assault charge would be
dismissed in exchange for her guilty plea to the DWI charges.”).
Hatter -- 11

address the claim that the State was not put on notice of the plea agreement

theory below.

As we will explain in greater detail below, we conclude that there was

no enforceable plea agreement in this case, and the court of appeals erred to

conclude otherwise. The prosecutor’s promise to dismiss the felony assault

case and not refile it was not binding under these circumstances. 24 Therefore, 23F

we reverse the judgment of the court of appeals and enter judgment reversing

the trial court’s order granting Appellee’s motion for specific performance.

Plea Bargain Agreements

We have described the process of plea bargaining as one in which a

defendant, his or her attorney, and the prosecutor “enter into an agreement

which provides that the trial on [a] particular charge not occur or that it will

be disposed of pursuant to the agreement between the parties, subject to the

approval of the trial judge.” 25 There is no constitutional or statutory right to
24F

a plea bargain. 26 A plea bargain agreement is a contract between the State
25F

and the defendant. 27 26F As such, general contract law principles govern and

24
We need not reach the question of whether the theory that there was a plea bargain
agreement constitutes “the law applicable to the case” because we conclude that there was
no plea bargain agreement in the first place.

25
Perkins v. Court of Appeals for Third Supreme Judicial Dist. Of Texas, at Austin, 738 S.W.2d
276, 282 (Tex. Crim. App. 1987) (“Put another way, ‘plea bargaining is the process by which
the defendant in a criminal case relinquishes his right to go to trial in exchange for a reduction
in charge and/or sentence.’”).

26
Id. (citing Morano v. State, 572 S.W.2d 550, 550-51 (Tex. Crim. App. 1978)).

27
Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009).
Hatter -- 12

appellate courts look to any written agreement as well as the record to

determine the terms of a plea agreement. 28 A plea bargain agreement is a
27F

bilateral contract and consists of three parts: a plea of guilty, the consideration

for it, and approval of the agreement by the trial court. 29 28F Plea bargain

agreements “may contain a wide variety of stipulations and conditions that

allow the state to tailor conditions in order to reach agreement with the

defendant.” 30 Until all of the necessary parties have agreed to the terms of
29F

the contract, the agreement is not binding. 31 30F

We have recognized that a plea bargain agreement becomes a binding

contract only after both parties have knowingly and voluntarily agreed to the

terms of the agreement and the agreement is accepted by the trial judge. 32 31F

We have previously stated:

When a defendant agrees to the terms of a plea bargain
agreement, he is deemed to have entered into the agreement
knowingly and voluntarily unless he shows otherwise. In effect, he
becomes a party to a “contract.” The “contract” does not become
operative until the court announces it will be bound by the plea
bargain agreement. Once the court makes such an
announcement, the State is bound to carry out its side of the
bargain. Likewise, the defendant is bound to carry out his side of
the bargain. 3332F

28
Thomas v. State, 516 S.W.3d 498, 502 (Tex. Crim. App. 2017).

29
Ortiz v. State, 885 S.W.2d 271, 273 (Tex. App. – Corpus Christi, 1994), aff’d, Ortiz v. State,
933. S.W.2d 102, 103 (Tex. Crim. App. 1996).

30
Moore, 295 S.W.3d at 331-32.

31
Ortiz, 933 S.W.2d at 104.

32
Moore, 295 S.W.3d at 331.

33
Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982) (internal citations omitted).
Hatter -- 13

This understanding of plea bargaining is codified in Article 26.13 of the

Code of Criminal Procedure, which requires that, before accepting a guilty

plea, trial courts “inquire as to the existence of a plea bargain agreement

between the state and the defendant and, if an agreement exists, the court

shall inform the defendant whether it will follow or reject the agreement in

open court and before any finding on the plea.” 34 Once a trial court accepts
33F

a plea bargain agreement, the State cannot withdraw its offer. 35 Before that34F

period, only the State may offer or withdraw a plea bargain offer. 36 35F If the

trial court rejects an agreement reached by the parties, the defendant shall

be permitted to withdraw his or her plea of guilty. 37 36F

Therefore, the parties must each knowingly and voluntarily agree to the

terms, and the trial court must approve those terms, before the plea bargain

agreement becomes binding. 38 If such an agreement exists, the parties are
37F

entitled to specific performance of the bargain if the agreement is

34
Tex. Code Crim. Proc. Ann. art. 26.13(a)(2).

35
Moore, 295 S.W.3d at 332; Ex parte Cox, 482 S.W.3d 112, 116 (Tex. Crim. App. 2016) (“It
is well established that, after the judge has accepted a plea bargain in open court, a defendant
has a right to enforce the State’s part of the plea bargain.”).

36
Moore, 295 S.W.3d at 332 (recognizing that “[o]nly the state may offer or withdraw a plea
bargain” but “[i]f the trial court accepts a plea-bargain agreement, the state may not withdraw
its offer.”).

37
Tex. Code Crim. Proc. Ann. art. 26.13(a)(2).

38
Ex parte Williams, 758 S.W.2d 785, 786 (Tex. Crim. App. 1988) (“When a trial court accepts
a plea agreement, its terms then become binding upon the parties.”).
Hatter -- 14

enforceable. 39 38F If the provisions of a plea agreement are unenforceable, a

guilty plea entered according to the agreement may be withdrawn. 40 “A party 39F

to an agreement has no contractual rights to demand specific performance

over terms not appearing in the agreement or record.” 41 40F With these

considerations in mind, we turn to whether or not a plea bargain agreement

existed in this case.

Analysis

It is undisputed that the State made a plea offer, but that is as far as it

went. The State offered to dismiss Appellee’s felony case in exchange for

Appellee’s plea of guilty in the driving while intoxicated cases. 42 Appellee and
41F

the State agree that these were the terms of the plea offer. But that plea

offer never became a binding plea bargain agreement.

There are several reasons for our conclusion that the dismissal of

Appellee’s felony assault charge was not pursuant to a plea bargain

39
Moore, 295 S.W.3d at 332; Perkins, 738 S.W.2d at 283 (“when the defendant enters into
a plea bargain agreement with the prosecutor, and the trial judge approves the agreement,
and the agreement is not kept, the proper relief is either specific performance of the
agreement, if it can be enforced, or withdrawal of the plea if it cannot”).

40
Perkins, 738 S.W.2d at 283; see also Ex parte Austin, 746 S.W.2d 226, 227 (Tex. Crim.
App. 1988) (“The appropriate relief for failure to keep a plea bargain is either specific
enforcement of the agreement or withdrawal of the plea, depending on the circumstances of
each case.”).

41
Williams, 758 S.W.2d at 786.

42
Perkins, 738 S.W.2d at 282 (“Plea bargaining is a process which implies a preconviction
bargain between the State and the accused whereby the accused agrees to plead guilty or
nolo contendere in exchange for a reduction in the charge, a promise of sentencing leniency
. . . or some other concession by the prosecutor . . .”).
Hatter -- 15

agreement. First, the offer did not become an agreement because a plea

bargain agreement requires both parties to agree to the terms of the offer. 43 42F

Appellee never agreed. Appellee’s counsel acknowledged in her affidavit that

the dismissal of the felony charge was contingent upon the pleas in the

misdemeanor cases. 44 Counsel likewise acknowledged that Appellee’s counsel
43F

on the misdemeanor cases was unwilling to negotiate a plea in accordance

with the agreement. And there is no evidence in the record that Appellee ever

agreed to plead guilty to the DWIs as part of the State’s plea offer nor did she

plead guilty to the DWIs. Without Appellee’s agreement to plead guilty to the

DWIs, the parties did not have a plea bargain agreement. 45 44F

Second, even if we were to assume that Appellee and the State had

reached an agreement, that agreement never became binding because it was

never approved by the trial court. 46 The terms of the plea bargain offer were
45F

never brought to the trial court for approval. Unless the trial judge accepts a

plea agreement, the contract of the plea agreement is not binding on the

parties. 47 For example, in Ortiz v. State, a defendant charged with aggravated
46F

43
Williams, 637 S.W.2d at 947.

44
Counsel’s affidavit states: “The offer from the State to [Appellee] in our felony case was
that in exchange for a plea of guilty in her Driving While Intoxicated case(s), her Assault of a
Public Servant case would be dismissed.”

45
Ortiz, 933 S.W.2d at 104.

46
Williams, 637 S.W.2d at 946; Moore, 295 S.W.3d at 331.

47
Ortiz, 933 S.W.2d at 104.
Hatter -- 16

robbery pleaded guilty, pursuant to a plea agreement, to the lesser included

offense of robbery. 48 The trial court “accepted” the defendant’s guilty plea
47F

but stated he was “deferring findings” until the preparation of the presentence

report. 49 48F After the report was available, the trial court stated it could not

accept the terms, specifically, the finding as to the lesser included offense. 50 49F

The defendant sought to enforce the plea agreement, arguing that the trial

court implicitly accepted the terms of the agreement when it “accepted” the

guilty plea. 51 50F The court of appeals disagreed, concluding that any such

“acceptance” was premature and tentative because the trial court deferred

findings, and therefore, did not approve or reject the plea agreement at the

time of the defendant’s guilty plea. 52 51F We agreed, stating, “[e]ssentially, the

trial judge accepted the plea conditionally while he deferred a final decision

until the pre-sentence investigation was complete. He did not adjudicate guilty

or accept the plea agreement.” 53 52F

Here, even assuming Appellee had agreed to the terms of the State’s

plea bargain offer, the trial court never had the opportunity to approve the

48
Id. at 103.

49
Id.

50
Id.

51
Id. at 104.

52
Id.

53
Id.
Hatter -- 17

agreement. The State’s motion to dismiss, for example, indicated only that

the State reserved the right to refile. Because Appellee never sought to enter

a guilty plea in the DWIs, no trial court ever inquired as to the existence of a

plea bargain agreement or informed Appellee whether the agreement would

be followed or rejected as required. 54 53F

The court of appeals concluded that Appellee was prevented from

holding up her end of the bargained for agreement because the State made

her performance impossible by dismissing the DWI charges. 55 54F But this

conclusion presumes that Appellee agreed to plead guilty to the DWIs and, as

discussed above, the record does not support that conclusion. It also

presumes that the trial court would have approved the plea bargain

agreement, thereby rendering its terms binding on the parties. 56 55F Before

approval by the trial court, the State was free to withdraw its offer to dismiss

the felony. 57 Without the trial court’s approval of the terms of the plea bargain
56F

and the agreement of both parties to those terms, the State was not bound

to its initial plea offer. 58
57F

54
Tex. Code Crim. Proc. Ann. art. 26.13(a)(2).

55
Hatter, 681 S.W.3d at 892.

Moore, 295 S.W.3d at 332 (“If the trial court accepts a plea-bargain agreement, the state
56

may not withdraw its offer.”).

Id.; see also DeRusse v. State, 579 S.W.2d 224, 236 (Tex. Crim. App. 1979) (holding there
57

was no reversible error when the State withdrew its plea offer prior to the entry of the
defendant’s plea).

58
Moore, 295 S.W.3d at 332. We disagree with the court of appeals that the trial court
implicitly accepted the plea agreement when it concluded there was a promise made to
Hatter -- 18

Even if we regarded the State’s decision to dismiss the felony case as a

“promise,” we agree with Justice Jewell that such a unilateral promise was not

enforceable because Appellee never offered any consideration. 59 Unlike a plea
58F

agreement, which involves a bilateral contract in which there are mutual

promises between the two parties, a unilateral contract may be “created by

the promisor promising a benefit if the promisee performs.” 60 A unilateral 59F

contract becomes enforceable when the promisee performs, thus accepting

the offer through his or her actions rather than by an agreement to act. 61 The 60F

Texas Supreme Court has explained that a “unilateral contract occurs when

there is only one promisor and the other accepts . . . by actual performance,

rather than by the usual mutual promises.” 62 Thus, in order for the State’s
61F

unilateral promise to dismiss the felony charge to be enforceable, Appellee

would have to have provided some consideration, e.g., performance. Appellee

dismiss the case “no matter what” and granted the motion for specific performance. Hatter,
681 S.W.3d at 891. The trial court’s conclusion illustrates only that the trial court intended
to enforce the State’s promise to dismiss regardless of whether there was a contracted plea
bargain agreement. Id. at 896 (Jewell, J., dissenting) (noting that the trial court said it was
granting the motion because it “is the honoring of the promise” although it was “not sure” if
there was a contract).

59
Hatter, 681 S.W.3d at 895-96.

60
Vanegas v. Am. Energy Servs., 302 S.W.3d 299, 302 (Tex. 2009) (internal citations
omitted).

61
Id.; see also City of Houston v. Williams, 353 S.W.3d 128, 135-36 (Tex. 2011) (explaining
that a unilateral contract created by a promisor’s promise of a certain benefit if the promisee
performs becomes enforceable upon the promisee’s performance).

62
City of Houston, 353 S.W.3d at 136 (“The 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.”).
Hatter -- 19

gave no consideration in exchange for the State’s promise. And without

consideration, the State’s unilateral promise to dismiss, assuming the trial

court found such a promise existed, was not enforceable. 63 Thus, the State’s
62F

promise was not enforceable. To the extent that Appellee argues that her

ability to provide the necessary consideration was frustrated by the State’s

dismissal of the two DWIs, we regard this as the State’s withdrawal of its offer

prior to acceptance which the State was authorized to do. 64 63F

Conclusion

Because we conclude that there was no binding plea agreement, we

need not consider the court of appeals’ conclusion that the State breached the

terms of that agreement. Here, the State offered to dismiss the felony assault

charge in exchange for a plea of guilty to the DWI charges. The terms were

neither accepted by Appellee nor approved by the trial court as required for a

plea bargain agreement to become a binding contract. And, to the extent it

can be argued that the State unilaterally promised to dismiss the felony

charge, that promise was unenforceable because Appellee never accepted the

State’s promise to dismiss through performance. Before performance, the

State was not bound by the terms of its plea offer or any unilateral promise.

We reverse the judgment of the court of appeals and enter a judgment

63
Id.

64
Moore, 295 S.W.3d at 332; Vanegas, 302 S.W.3d at 303 (a unilateral contract offer can be
withdrawn at any point prior to performance); DeRusse, 579 S.W.2d at 236 (“In the absence
of any showing of harm, we hold that the prosecutor’s withdrawal from the plea bargain
agreement prior to the entry of the plea by [the defendant] was not reversible error.”).
Hatter -- 20

reversing the trial court order directing the State to dismiss the felony and

remand for further proceedings consistent with this opinion.

Publish

Delivered: January 22, 2025