Gary Don Jennings v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 1, 2021
• Docket: 05-21-00339-CR
• Status: Published

Opinion

DISMISS and Opinion Filed July 1, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00339-CR

GARY DON JENNINGS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F20-00545-P

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Schenck Gary Don Jennings appeals his conviction for driving while intoxicated, third

offense. After he pleaded guilty to the offense and true to the enhancement

paragraph, the trial court found appellant guilty and the enhancement paragraph true,

and sentenced him to ten years in prison, probated for six years. The trial court then

certified this was a plea-bargain case and appellant had no right of appeal. Appellant

filed a motion for new trial and a notice of appeal.

After reviewing the notice of appeal and documents filed along with the

notice, the Court sent the parties a letter, questioning the Court’s jurisdiction over

the appeal. Appellate counsel responded, stating appellant had “no dispute regarding how the trial court’s certification indicates that the case is a plea bargain case and

that Appellant ‘has NO right to appeal.’” The State also filed a response, agreeing

that appellant waived his right to appeal.

Rule 25.2 governs the perfection of appeals in criminal cases and requires that

the trial court certify an appellant’s right to appeal. TEX. R. APP. P. 25.2(a)(2). Rule

25.2 also requires the recitations in a certification to be true and supported by the

record. See Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005)

(certification not supported by record is defective); Carender v. State, 155 S.W.3d

929, 930–31 (Tex. App.—Dallas 2005, no pet.); Waters v. State, 124 S.W.3d 825,

826 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

There are two basic kinds of plea bargains that affect punishment: (1) sentence

bargaining and (2) charge bargaining. See Shankle v. State, 119 S.W.3d 808, 813

(Tex. Crim. App. 2003). Sentence bargaining may be for binding or nonbinding

recommendations to the court on sentences, including a recommended “cap” on

sentences or recommendation for probation. Id. Sentence bargaining affects

punishment and constitutes a plea bargain agreement under appellate rule 25.2. Id.

In this case, appellant signed a written plea bargain agreement in which the

State agreed to a term of ten years, probated for six years in exchange for, among

other things, appellant pleading guilty and waiving his right to appeal. The plea

bargain agreement is signed by appellant, his appointed counsel, the representative

for the State, and the trial court. The trial court followed the plea bargain agreement

–2– and sentenced appellant to ten years in prison, probated for six years. The trial court

certification reflects the terms of the plea bargain agreement by stating appellant

waived his right to appeal.

Under these circumstances, we have no other alternative than to dismiss this

appeal.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 210339F.U05

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

GARY DON JENNINGS, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05-21-00339-CR V. Trial Court Cause No. F20-00545-P. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Schenck. Justices Reichek and Carlyle participating.

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

Judgment entered July 1, 2021

–4–