Garrick Jamal Smith v. State

• Court: Court of Appeals of Texas
• Decided: April 1, 2019
• Docket: 05-19-00007-CR
• Status: Published

Opinion

DISMISSED; Opinion Filed April 1, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00007-CR

GARRICK JAMAL SMITH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 068331

MEMORANDUM OPINION Before Justices Myers, Osborne, and Nowell Opinion by Justice Myers Garrick Jamal Smith appeals his convictions for assault of a public servant, tampering with

or fabricating physical evidence, and taking a weapon from a peace officer. Appellant pleaded

guilty to all three offenses in exchange for the State’s agreement to “cap” punishment in the first

two counts and to abandon the enhancement paragraph in the third count. The trial court found

appellant guilty and assessed punishment at twelve years in prison for each of the first two counts

and two years in state jail for the third count. Appellant then filed his notice of appeal.

After reviewing appellant’s notice of appeal and the details of the convictions, we had

questions regarding our jurisdiction. By letter dated January 23, 2019, we asked appellant and the

State to file letter briefs regarding the jurisdictional issue. Neither party responded. The clerk’s record shows that when appellant was indicted, each count had been enhanced

by a prior felony conviction. Appellant agreed to plead guilty to count 1, assault of a public

servant, and count 2, tampering with or fabricating physical evidence (both third-degree felonies

enhanced by prior felony convictions to second-degree felony punishment), in exchange for the

State’s agreement to recommend a “cap” of 15 years. He also agreed to plead guilty to count 3,

taking a weapon from a peace officer (a state-jail felony originally enhanced by a prior felony

conviction to a third-degree punishment) in exchange for the State’s agreement to abandon the

enhancement paragraph. The trial court admonished appellant in writing that if he pleaded guilty

under a plea bargain agreement with the State and the trial court followed the plea bargain,

appellant would not be allowed to appeal his convictions “except for those matter, if any, raised

by written motions filed and ruled on by the Court prior to trial.” Appellant, appellant’s trial

counsel, the district attorney, and the trial court signed the agreement. The clerk’s record also

shows that no substantive written motions were filed or ruled on by the trial court prior to the

hearing on appellant’s pleas. The trial court then followed the plea bargain agreement, found

appellant guilty, and assessed punishment. The trial court certified that appellant had waived his

right to appeal.

A defendant in a plea bargain case‒that is, a case in which a defendant’s plea was guilty or

nolo contendere and the punishment did not exceed the punishment recommended by the

prosecutor and agreed to by the defendant‒may appeal only (1) matters that were raised by written

motion filed and ruled on before trial or (2) after getting the trial court’s permission to appeal.

TEX. R. APP. P. 25.2(a)(2). There are two basic kinds of plea-bargaining: charge-bargaining and

sentence-bargaining. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). Charge-

bargaining involves whether a defendant will plead guilty to the offense that has been alleged or

to a lesser or related offense, and whether the prosecutor will dismiss, or refrain from bringing,

–2– other charges. Id. Sentence-bargaining may be for binding or non-binding recommendations to

the court on sentences, including a recommended “cap” on sentencing and a recommendation for

deferred-adjudication probation. Id.

Here, appellant entered into a sentence plea-bargain with the State when he agreed to plead

guilty in exchange for (1) the State’s recommendation of a fifteen-year-cap in the third-degree

offenses that were enhanced to second-degree felony punishment and (2) the State’s agreement to

abandon the enhancement paragraph that would have raised the range of punishment from state

jail to third-degree felony in the taking a weapon from a peace officer offense. As previously

noted, no substantive written motions were filed or ruled on by the trial court prior to the hearing

on appellant’s plea, and the trial court did not give permission to appeal. Thus, appellant waived

his right to appeal.

We dismiss this appeal.

/Lana Myers/ LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 190007F.U05

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

GARRICK JAMAL SMITH, Appellant On Appeal from the 397th Judicial District Court, Grayson County, Texas No. 05-19-00007-CR V. Trial Court Cause No. 068331. Opinion delivered by Justice Myers, THE STATE OF TEXAS, Appellee Justices Osborne and Nowell participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered this 1st day of April, 2019.

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