DISMISSED and Opinion Filed March 17, 2020




                                    S  In the
                          Court of Appeals
                   Fifth District of Texas at Dallas
                               No. 05-19-00368-CR

                   RODNEY MITCHELL SMITH, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee

               On Appeal from the 292nd Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. F18-17051-V

                         MEMORANDUM OPINION
                    Before Justices Myers, Schenck, and Carlyle
                            Opinion by Justice Carlyle
      In addition to both parties’ merits briefing, the State has moved to dismiss.

We agree with the State that, because (1) this appeal is from a conviction based on

a plea bargain and (2) there were no matters raised by written motion filed prior to

trial, we must dismiss Smith’s appeal for lack of jurisdiction. See TEX. CODE CRIM.

PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2).

      After Smith was indicted and charged with harassment of a public servant,

several documents were filed in advance of Smith’s plea hearing, including (1) a

judicial confession to the offense as charged; (2) the Court’s Admonishment on
Right to Order of Nondisclosure; (3) the Trial Court’s Certification of Defendant’s

Right of Appeal; and (4) the Plea Agreement.

      The Plea Agreement shows Smith agreed to plead guilty, by plea “[o]pen as

to . . . Deferred Adjudication.” In exchange, the State agreed to recommend either

two years of confinement, the minimum for the charged offense, or five years of

deferred-adjudication probation that would include treatment in a state-contracted

Intermediate Sanction Facility. The Court’s Admonishment on Right to Order of

Nondisclosure, which applies only to defendants who receive deferred adjudication,

see TEX. GOV’T CODE § 411.0715, indicates Smith understood he would be

sentenced to deferred adjudication in exchange for his guilty plea, and that

understanding was confirmed at the plea hearing.

      The Court advised Smith of the applicable range of punishment for his

offense. The Court asked Smith whether he understood the court did not have to

“follow the plea bargain of deferred probation,” Smith confirmed he did, and the

Court told Smith he would be unable to appeal the trial court’s ruling if it followed

the plea bargain. Smith confirmed to the court that the only issue the court needed

to decide, based on the court accepting his plea bargain, was the terms of Smith’s

probation. Smith confirmed he was entering his plea freely and voluntarily, and the

trial court admitted his judicial confession and took judicial notice of its file.

      The State rested and Smith took the stand on his own behalf. On direct

examination, he asked the trial court to give him five years of deferred-adjudication
                                           –2–
probation. He acknowledged on the record that it was up to the trial court to decide

the specific terms of that probation and promised to comply with any imposed

conditions. The court told Mr. Smith it would not be sending him to the penitentiary,

Smith thanked the court, and the court advised Smith it believed a nine-month

special needs program was in his best interest. Smith assented.

        The Court accepted Smith’s guilty plea, formally announced Smith would be

placed on five years of deferred-adjudication probation, and assessed a $0 fine. The

Order of Deferred Adjudication states the “Terms of Plea Bargain,” are “5 YEARS

DEFFERED PROBATION.” The Court’s acts did not exceed the terms of the

parties’ plea bargain. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App.

2003) (noting a sentence-bargaining agreement exists where the State agrees to

recommend a “cap” on sentencing or deferred-adjudication probation in exchange

for the defendant’s guilty plea); Carender v. State, 155 S.W.3d 929, 930–31 (Tex.

App.—Dallas 2005, no pet.) (same); TEX. R. APP. P. 25.2(a)(2).

        Though Smith initially argued here that he was harmed by the trial court’s

failure to admonish him that he could withdraw his guilty plea if the court did not

follow the terms of the plea agreement, he pivoted once the State moved to dismiss

the appeal. He now argues there was no plea bargain in his case. We disagree and

thus must dismiss.1


    1
      Though the Trial Court’s Certification of Defendant’s Right of Appeal incorrectly indicates that this
“is not a plea-bargain case, and the defendant has the right of appeal,” such a certification, where otherwise

                                                    –3–
        Smith is limited to appealing only “those matters that were raised by written

motion filed and ruled on before trial” but there were none here. See TEX. R. APP. P.

25.2(a)(2)(A); see Carender, 155 S.W.3d at 931; Ajagbe v. State, 132 S.W.3d 491,

491 (Tex. App.— Houston [1st Dist.] 2004, no pet.); Waters v. State, 124 S.W.3d

825, 826 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Smith failed to obtain

permission to raise his issues on appeal, which concern the trial court’s plea

admonishment and the voluntariness of his guilty plea. See TEX. R. APP. P.

25.2(a)(2)(B); see also Carender, 155 S.W.3d at 931. And, Smith’s appeal is not

expressly authorized by statute. See TEX. R. APP. P. 25.2(a)(2)(C).

        We dismiss Smith’s appeal for lack of jurisdiction. TEX. CODE CRIM. PROC.

art. 44.02; TEX. R. APP. P. 25.2(a)(2); see Chavez v. State, 183 S.W.3d 675, 680 (Tex.

Crim. App. 2006); Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001) (in a

plea-bargain case, the voluntariness of a plea cannot be raised on appeal without

permission).




                                                     /Cory L. Carlyle/
                                                     CORY L. CARLYLE
                                                     JUSTICE


Do Not Publish




contradicted by the record as it is here, will not authorize an appeal beyond what is expressly permitted
under Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure and Code of Criminal Procedure article
44.02. See Carender, 155 S.W.3d at 931; Ajagbe, 132 S.W.3d at 491; Waters, 124 S.W.3d at 826.
                                                  –4–
                                  S
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                JUDGMENT

RODNEY MITCHELL SMITH,                     On Appeal from the 292nd Judicial
Appellant                                  District Court, Dallas County, Texas
                                           Trial Court Cause No. F18-17051-V.
No. 05-19-00368-CR         V.              Opinion delivered by Justice Carlyle.
                                           Justices Myers and Schenck
THE STATE OF TEXAS, Appellee               participating.

      Based on the Court’s opinion of this date, the appeal is DISMISSED.


Judgment entered this 17th day of March, 2020.
