




02-12-274-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-12-00274-CR
 
 



Kelly K. McKim


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM THE 371st
District Court OF Tarrant COUNTY
----------
MEMORANDUM
OPINION[1]
----------
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
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 felony[5] 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 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DO NOT PUBLISH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
 

 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-12-00274-CR
 
 



Kelly
  K. McKim
 
 
 
v.
 
 
 
The
  State of Texas


§
 
§
 
§
 
§
 
§


From the 371st District
  Court
 
of
  Tarrant County (1264673D)
 
September
  20, 2012
 
Per
  Curiam
 
(nfp)



 
JUDGMENT
This
court has considered the record on appeal in this case and holds that the
appeal should be dismissed.  It is ordered that the appeal is dismissed.
 
SECOND DISTRICT COURT OF APPEALS 
 
 
PER CURIAM
 




[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).


[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).


[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).


