Garrick Jamal Smith v. State ( 2019 )

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,
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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
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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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