DISMISS and Opinion Filed April 15, 2020




                                    S  In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-00849-CR

                 DOMINIQUE RASHAD FRAZIER, Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

               On Appeal from the Criminal District Court No. 2
                            Dallas County, Texas
                     Trial Court Cause No. F18-70781-I

                        MEMORANDUM OPINION
          Before Chief Justice Burns, Justice Myers, and Justice Carlyle
                         Opinion by Chief Justice Burns
      Dominique Rashad Frazier was indicted for a second family violence assault,

a third-degree felony. The indictment also alleged two prior felony offenses to be

used to enhance the available range of punishment, making the punishment range

life or not more than 99 years or less than 25 years. Appellant entered into an “open”

plea agreement with the State. The July 3, 2019 written plea agreement states (1)

appellant will plead guilty to “Assault FV Enhanced,” (2) “OPEN. CAP AT 10 TDC,

strike 1st enhancement ¶,” and (3) the punishment range is “not more than 20 years

or less than 2 years confinement” with an optional fine not to exceed $10,000. The
agreement is signed by appellant, appellant’s counsel, the State’s attorney, and the

trial court.

       That same day, appellant appeared in open court, was admonished, and

entered his guilty plea and plea of true to the second enhancement paragraph. The

State reminded the trial court that punishment “has been capped at ten [years.]” After

several witnesses testified, including appellant who acknowledged the ten-year cap,

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

sentenced him to ten years. The following then occurred:

       Court:        Your attorney there has there in front of you a copy of trial
       court certification of defendant’s rights on appeal. You’ve gone over
       that document with him, correct? That’s there in front of you, it has
       your signature on it.

       Appellant: (Nods head.)

       Court:       Yes?

       Appellant: Yes, ma’am.

       Court:       So you understand your rights as it relates to appealing this
       case?

       Appellant: Yes, ma’am.

        Court:      Good luck to you, sir.

       (COURT ADJOURNED).

       The trial court’s July 3, 2019 certification of appellant’s right to appeal states

the case is “not a plea-bargain case, and the defendant has the right of appeal.” The

State did not object to or otherwise challenge the trial court’s statements or the


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certification of appellant’s right to appeal. Five days later, the trial court appointed

counsel to represent appellant in this appeal.

      In his February 5, 2020 brief, appellant concedes that by entering into a plea

bargain, a defendant waives his right to appeal. He further acknowledges that the

State’s recommendation of a “cap” on punishment and abandonment of an

enhancement allegation in exchange for appellant pleading guilty is a plea bargain

agreement. Nevertheless, he argues his plea should be characterized as a “non-

negotiated plea” because “the maximum sentencing exposure of 10 years’

confinement was the same as it would have been if the State formally abandoned

both enhancement counts.” In his words, “the 10-year ‘cap’ was superfluous and

gave no benefit” to appellant.

      In response, the State filed a motion to dismiss, arguing that the trial court’s

certification is defective and contrary to the record. The State notes the plea

agreement reflects appellant agreed to plead guilty and waive his right to appeal in

exchange for the State abandoning the first enhancement paragraph and

recommending a cap of 10 years. Because appellant agreed to waive his right to

appeal, the State contends we lack jurisdiction to hear his direct appeal. After

reviewing the record, we agree with the State.

      Rule 25.2 provides:

      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

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      punishment recommended by the prosecutor and agreed to by the
      defendant—a defendant may appeal only:

      (A) those matters that were raised by written motion filed and ruled on
      before trial,

      (B) after getting the trial court’s permission to appeal, or

      (C) where the specific appeal is expressly authorized by statute.


TEX. R. APP. P. 25.2(a)(2). If the State abandons an enhancement paragraph which

would have increased the maximum punishment that the defendant could have

received or agrees to a cap on punishment in exchange for a defendant’s plea of

guilty, the requirements of rule 25.2(a)(2) apply. See Shankle v. State, 119 S.W.3d

808, 813‒14 (Tex. Crim. App. 2003); Carender v. State, 155 S.W.3d 929, 931 (Tex.

App.—Dallas 2005, no pet.).

      Here, the plea agreement supports the State’s argument that appellant waived

his right to appeal. It recites that appellant will plead guilty to the 3rd degree felony

enhanced offense of assault family violence and, although the punishment range is

not more than 20 years or less than 2 years, the State agrees to drop the first

enhancement paragraph and to cap punishment at ten years. The agreement includes,

“If the punishment assessed does not exceed the agreement between [appellant] and

the prosecutor, the Court must give its permission to you before you may appeal any

matter in this case except for those matters raised by written motions prior to trial.”

The trial court followed the plea bargain agreement and sentenced appellant to 10

years in prison.
                                          –4–
      Although the trial court’s certification states this is not a plea bargain case and

appellant has the right to appeal, we conclude, based on the record, the certification

is defective and should have indicated this was a plea-bargain case and appellant had

no right to appeal. See Dears v. State, 154 S.W.3d 610, 614‒15 (Tex. Crim App.

2005). Furthermore, the record shows no matters raised by written motion and ruled

on before trial. Thus, appellant has no right to appeal under the rules. See TEX. R.

APP. P. 25.2(a), (d).

      We dismiss this appeal.




                                            /Robert D. Burns, III/
                                            ROBERT D. BURNS, III
Do Not Publish                              CHIEF JUSTICE
TEX. R. APP. P. 47.2(b)
190849F.U05




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                                  S
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                  JUDGMENT

DOMINIQUE RASHAD FRAZIER,                   On Appeal from the Criminal District
Appellant                                   Court No. 2, Dallas County, Texas
                                            Trial Court Cause No. F18-70781-I.
No. 05-19-00849-CR         V.               Opinion delivered by Chief Justice
                                            Burns. Justices Myers and Carlyle
THE STATE OF TEXAS, Appellee                participating.

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


Judgment entered April 15, 2020




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