IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                         NO. PD-1124-15



                           JAMES EARL WILLIAMS, Appellant

                                                  v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE TENTH COURT OF APPEALS
                         McLENNAN COUNTY

             K ELLER, P.J., delivered the opinion of the Court in which M EYERS,
K EASLER, H ERVEY, A LCALA, R ICHARDSON, Y EARY and N EWELL, JJ, joined.
J OHNSON, J. concurred.


       Pursuant to an agreement, appellant pled guilty to two felony offenses. In addition to the

written terms of the plea agreement, the parties orally agreed to a statement made by defense counsel.

This statement, occurring at the plea hearing after defense counsel acknowledged the written terms

of the agreement “in each case,” was: “And the State . . . is going to refuse prosecution of any other

case in which the State has notice . . . unfiled cases.” Appellant now contends that this oral part of

the plea agreement was unambiguous and bars the prosecution of an unrelated murder case because
                                                                                  WILLIAMS — 2

the State had notice of it at the time of the plea. The State contends that this oral part of the

agreement was ambiguous and that affidavits from the attorneys involved in the plea show that the

plea agreement was not intended to encompass the murder case. We agree with the State and affirm

the judgment of the court of appeals.

                                        I. BACKGROUND

                                   A. The Earlier Prosecutions

       Offense reports by the Waco Police Department indicate that appellant committed several

crimes on July 25, 1998. Appellant forcibly entered the home of Roy Mitchell and robbed him at

gunpoint. He also shot Darrell Davis in the parking lot of a Church’s Fried Chicken. A stray bullet

allegedly struck a nine-year-old child nearby, who suffered a superficial wound.

       Appellant was indicted for aggravated robbery for the incident involving Mitchell and for

aggravated assault for the incident involving Davis. In 2002, appellant pled guilty to these offenses

pursuant to an agreement. In each case, a document entitled “Disclosure of Plea Recommendation”

stated that appellant was pleading guilty to the respective offense in exchange for a fifteen-year

sentence. These documents were signed by the prosecutor, appellant, and defense counsel. At the

plea hearing, the plea agreement was discussed as follows:

       THE COURT: And has there been a plea bargain entered into between the State and
       the defense?

       [PROSECUTOR]: Yes, Your Honor. The State’s agreed to recommend 15 years
       confinement in the penitentiary.

       THE COURT: Is that your understanding of the plea bargain, [defense counsel]?

       [DEFENSE COUNSEL]: Yes, sir, in each case. And the State, um, is going to refuse
       prosecution of any other case in which the State has notice, um –
                                                                                  WILLIAMS — 3

       [PROSECUTOR]: That’s correct.

       [DEFENSE COUNSEL]: – unfiled cases.

       [PROSECUTOR]: That’s correct.

The trial court would later ask, “And do you understand what the recommendation is in each of these

cases?” Appellant responded, “Yes.” The trial court followed the plea agreement and sentenced

appellant to fifteen years in prison on each case.

                                       B. The Present Case

       In 2012, appellant was indicted for the murder of Darren Lang. The murder was alleged to

have occurred on June 12, 1998.

       At trial, appellant moved to dismiss the murder prosecution on the basis of his plea

agreement in the prior cases. He contended that the murder case was an “unfiled case in which the

State has notice” in accordance with defense counsel’s statement of the oral portion of the prior plea

agreement. In support of his claim, appellant submitted an affidavit from himself that “it was [his]

understanding that all cases pending against [him] in the McLennan County District Attorney’s

office, both filed and unfiled, were taken into consideration” in his prior plea “and that the State

would refuse prosecution in any other cases in which the State has notice.” “Obviously,” appellant

further stated, “I understood this would include the unfiled murder case.” And appellant said that

he “would never have pled guilty” to the prior cases unless he “knew that those pleas would clean

up all cases against [him] in Waco.”

       Appellant also submitted two letters purportedly sent to him in 2001 by defense counsel in

the prior cases. Both letters stated that defense counsel planned to meet with the prosecutor about

“an unfiled murder case.”
                                                                                    WILLIAMS — 4

        The State submitted affidavits from the prosecutor and the defense attorney in the prior

cases.1 Both attorneys stated that the murder case was not part of the plea agreement.2 The State

took the position that the intent of the parties and the written documents control over what was said

in open court. When asked by the trial court what the State’s position would be if “what’s said in

open court counts,” the State replied that the term “notice” was unclear and ambiguous.3

        The trial court denied appellant’s motion to dismiss. In accordance with jury verdicts at the

guilt and punishment phases of trial, appellant was convicted of murder and sentenced to eighty-five

years in prison.

                                              C. Appeal

        On appeal, appellant contended that the trial court erred in denying his motion to dismiss.

The court of appeals agreed with the State “that, at the very least, the phrase ‘any other case in which




       1
           At the time of the murder trial, the defense attorney from the prior cases worked in the
district attorney’s office.
       2
          The prosecutor stated, “During plea negotiations we had specifically agreed that the
potential Murder charge from 1998 would not be taken into consideration in any form whatsoever
with these pleas.” Defense counsel stated, “The plea agreements in these cases did not in any way
include consideration of an unindicted murder charge against Mr. Williams. I never represented to
Mr. Williams that the unindicted murder charge was in any way included in the plea bargain
agreements.”
        3
          The State contended, “I don’t know what they meant by ‘notice.’ I mean, that’s why you
have to ask the parties who entered into the agreement. Cases that we have notice of, does it mean
notice that somebody has been arrested? Does it mean that, you know, we’ve taken it to a grand jury
but they haven’t made any recommendation for what we do with that case? I mean, what – we don’t
know what they meant by ‘notice’ because they never explained and that’s why we had to go back
and get, you know, written statements from both parties about what they meant when they made this
plea agreement.
                                                                                   WILLIAMS — 5

the State has notice . . . unfiled cases’ is ambiguous.”4 The court further concluded that the trial

court did not err in denying the motion to dismiss because (1) the plea documents in the prior cases

did not refer to the murder charge, (2) the prosecutor and defense attorney in the prior cases both

stated that the murder case was not included in the plea agreement, and (3) the record reflects other

unfiled cases that the State had notice of that relate to the aggravated robbery and aggravated assault

charges (trespass for entering Mitchell’s home and injury to a child for the stray bullet that injured

a nine-year-old).5 Consequently, the court of appeals affirmed appellant’s conviction.6

       Chief Justice Gray dissented.7 He would have determined that there was no ambiguity in the

plea agreement and that the murder case was an unfiled case about which the State had notice.8

                                             II. ANALYSIS

       A plea agreement is a contract between the State and the defendant.9 We look to the written

agreement and the formal record to determine the terms of a plea agreement, and we apply general

contract-law principles to interpret a plea agreement.10 The interpretation of a contract begins with

the text and requires that undefined words be given their plain, ordinary, and generally accepted




       4
Will. v. State, No. 10-13-00413-CR, 2015 Tex. App. LEXIS 7929, *5 (Tex.
App.–Waco July 30, 2015) (not designated for publication).
       5
            Id. at *5-6 & n.1.
       6
            Id. at *6.
       7
            Id. at *6-7 (Gray, C.J., dissenting).
       8
            Id. at *7.
       9
            Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013).
       10
Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016); De Leon, 400 S.W.3d at 89.
                                                                                    WILLIAMS — 6

meanings absent some indication of a different intent.11 Extrinsic evidence may be considered only

to interpret an ambiguous contract, not to create an ambiguity not apparent from the contract’s text.12

A contract is ambiguous only if it is subject to more than one reasonable interpretation,13 and

ambiguity cannot be created merely because a party can point to words or phrases that, read in

isolation, would favor multiple interpretations, nor is ambiguity created merely because some

language, when viewed through the lens of hindsight, could have been more clearly stated.14 Where

an ambiguity exists in a contract, the contract language will be construed against the party who

drafted it, “since the drafter is responsible for the language used.”15

       It is apparent that the oral part of the plea agreement cannot be interpreted literally. Defense

counsel’s reference to the “State” is not explicitly limited to the district attorney of McLennan

County—defense counsel simply said that the “State” would refuse prosecution of cases in which

the “State” has notice. A plea agreement could include an agreement that a case in another county

would not be prosecuted,16 but clearly the defense attorney was not intending his reference to the

State to include prosecuting authorities in other counties, and even appellant claims to understand

the reference to “State” to be limited to the district attorney’s office in McLennan County.

       Likewise, defense counsel’s statement “any other case” is not explicitly limited to appellant’s


       11
            U.S. Metals v. Liberty Mutual Group, 490 S.W.3d 20, 23 (Tex. 2015).
       12
            Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 450 (Tex. 2015).
       13
            U.S. Metals, 490 S.W.3d at 24.
       14
            RSUI Indemnity Co. v. The Lynd Co., 466 S.W.3d 113, 130 (Tex. 2015).
       15
            Gonzalez v. Mission American Ins. Co., 795 S.W.2d 735, 737 (Tex. 1990).
       16
            See Story v. State, 114 Tex. Crim. 668, 669, 27 S.W.2d 204 (1930).
                                                                                    WILLIAMS — 7

cases. Defense counsel could have, but did not, say “any other case involving the defendant.” But,

although a plea agreement could include an agreement not to prosecute a different individual,17 it is

obvious that the generic reference to “any other case” was not intended to embrace cases against

individuals other than appellant.

        Defense counsel’s references to the “State” and to “any other case” appear to be imprecise

language that, in context, was merely shorthand for the “McLennan County District Attorney’s

Office” and “any other case involving the defendant.” But there is another way in which the phrase

“any other case” may be shorthand. It may be a reference to other cases that arise from the same

facts as the cases that were pled. That is, the current cases involve certain offenses—an aggravated

robbery and an aggravated assault. But future cases could involve other offenses that arose from the

same transactions, unless the parties agree that the State will not prosecute such cases.

        Moreover, the reference to “any other cases” could have meant any cases involving offenses

that occurred at about the same time. The two cases that were pled have in common that the offenses

occurred on the same day. That is, the aggravated robbery and aggravated assault belonged to a set

of cases (those occurring on the same day) and the reference to “other cases” could have meant other

cases in that set.

        We think that the court of appeals was correct to consider the fact that the refusal-of-unfiled-

cases term was not contained in the written plea documents but was only the subject of an oral

statement at the plea proceedings. Oral statements implicate the maxim that “everyday language is

often imprecise.”18 There is no indication in the record of the plea proceeding that defense counsel


        17
             See De Leon, 400 S.W.3d at 85-86.
        18
             See Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997).
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sought to carefully parse an oral term of the plea agreement; to the contrary, defense counsel’s

phrasing is undeniably imprecise in at least two respects.

       We do not hold that the above circumstances conclusively establish that the refusal-of-

unfiled-cases term was case-specific (limited to offenses that arose from the same facts as the

offenses to which appellant pled). We do, however, find the circumstances sufficient to establish

ambiguity.

       And once we conclude that the oral term of the plea agreement was ambiguous, we must

inexorably conclude that the more limited construction of the term is appropriate. The defense

counsel in the prior cases, who was appellant’s agent, was the one responsible for the language used,

and so the language must be construed against appellant. But even if that rule of construction did

not work against appellant, defense counsel for those cases unequivocally stated that the murder case

was not included in the plea agreement—thereby indicating that he did not intend the broad meaning

to his words to which appellant now ascribes. The prosecutor likewise stated that the murder case

was not included in the agreement. And there were offenses arising from the facts of the offenses

pled that could have been later prosecuted absent the oral term of the plea agreement. By breaking

into Mitchell’s house with the intent to commit a felony, appellant committed a burglary offense that

could have been prosecuted later, but for the refusal-of-unfiled-cases term of the agreement.19

Likewise, the injury to the nine-year-old could also have been prosecuted at a later time, absent the




       19
           See Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (“[I]t is equally well
settled that a substantive felony and a burglary by entering a home without the consent of the owner
and with the intent to commit that felony are two distinct offenses.”).
                                                                                    WILLIAMS — 9

oral term of the plea agreement.20

        Because we conclude that the oral term of the plea agreement was limited to unfiled cases

that arose from the same facts as the cases to which appellant pled, the prosecution of the murder

case, which was unrelated to those cases, was not barred by the oral term of the plea agreement.21

We affirm the judgment of the court of appeals.

Delivered: September 14, 2016
Publish




       20
            See Ex parte Hawkins, 6 S.W.3d 554, 557 (Tex. Crim. App. 1999) (“[I]n Texas the
allowable unit of prosecution for an assaultive offense is each victim.”). See also TEX . PENAL CODE
§ 22.04(a)(3) (“A person commits an offense if he . . . with criminal negligence, by act . . . causes
to a child . . . bodily injury.”); Ex parte Norris, 390 S.W.3d 338, 341 (Tex. Crim. App. 2012) (two
discrete acts having separate intents, even if both intents were to kill the same victim, can result in
two murders, if each act causes the death of a separate individual).
       21
           It is, of course, possible that appellant’s plea of guilty in these cases was involuntary, if
appellant mistakenly believed that the oral term of the plea agreement was broad enough to bar the
murder prosecution and if he would not have pled guilty had he understood that the plea agreement
did not dispose of his murder case. But that is a question to be raised in a proceeding attacking the
prior convictions, not in the appeal of the present case.