Fire Insurance Exchange v. Judy Kennedy ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00274-CR
KELLY K. MCKIM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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The State charged Appellant Kelly K. McKim with the state jail felony of
prostitution with three or more previous convictions,2 enhanced to a third-degree
felony.3 In a plea bargain, the State waived the enhancement count and agreed to
recommend a six-month sentence in a state jail facility as long as Appellant
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 43.02(c)(2) (West Supp. 2012).
3
See id. § 12.425(a).
appeared for sentencing on April 30, 2012 at 9:00 a.m. Otherwise, Appellant’s guilty
plea would be “open” to the trial court for punishment. Appellant signed the judicial
confession and waivers but did not appear on April 30, 2012. When she did appear,
the trial court accepted her guilty plea and sentenced her to twenty months’
confinement in a state jail facility. Appellant filed a timely, pro se notice of appeal.
The trial court’s certification states that this is a plea-bargained case and that
Appellant has no right of appeal. Accordingly, we informed her by letter on June 22,
2012, that this case was subject to dismissal unless she or any party showed
grounds for continuing the appeal within ten days.4 In her response, Appellant
argues that because the punishment exceeds the State’s six-month
recommendation, it is not a plea-bargained sentence. We disagree.
The twenty-month sentence imposed falls within the range of confinement for
a state jail felony5 but does not reach two years, the minimum term of confinement
for a third-degree felony.6 The judgment reflects the State’s waiver of the sentence
enhancement count. Because that waiver capped Appellant’s confinement at two
years rather than ten years, we agree with the trial court’s determination that this is
4
See Tex. R. App. P. 25.2(a)(2), 25.2(d).
5
See Tex. Penal Code Ann. § 12.35(a) (West Supp. 2012).
6
See id. § 12.34(a) (West 2011).
2
a plea-bargained case—specifically, a charge bargain.7 We therefore dismiss this
appeal.8
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 20, 2012
7
See Tex. R. App. P. 25.2(a)(2); Chavez v. State, 183 S.W.3d 675, 680 (Tex.
Crim. App. 2006); Shankle v. State, 119 S.W.3d 808, 813–14 (Tex. Crim. App.
2003).
8
See Tex. R. App. P. 25.2(d), 43.2(f).
3