             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00025-CR
          No. 02-19-00026-CR
     ___________________________

    ROBERT LEE KNOX, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 371st District Court
          Tarrant County, Texas
  Trial Court Nos. 1510062D, 1510064D


   Before Gabriel, Kerr, and Pittman, JJ.
  Memorandum Opinion by Justice Gabriel
                            MEMORANDUM OPINION

       Appellant Robert Lee Knox attempts to appeal the trial court’s judgments in

these consolidated appeals. In trial court cause number 1510062D, Knox was charged

with a state-jail-felony count of burglary of a building. See Tex. Penal Code Ann.

§ 30.02(c)(1). In trial court cause number 1510064D, he was charged with a state-jail-

felony count of theft. See id. § 31.03(e)(4)(D). The indictments in both causes

contained paragraphs enhancing the potential range of punishment for each offense

to that of a third-degree felony. See id. § 12.425(a).

       After entering into a plea agreement with the State, Knox pleaded guilty to

both charges and true to the corresponding enhancement paragraphs. The plea

papers—executed on November 29, 2017—reflect that in exchange for his guilty

pleas to the charged offenses, the State agreed to recommend that the trial court

sentence him to four years’ confinement in each case, but only on the condition that

he return for his sentencing on December 27, 2017, with no new offenses. If he

failed to return for his December 27, 2017 sentencing with no new offenses, the plea

papers reflect that Knox agreed to make “open plea[s] to [the] court.”

       Knox failed to appear for his December 27, 2017 sentencing. He was later

arrested and appeared for his sentencing nearly a year after his originally scheduled

sentencing date. The trial court sentenced him to ten years’ confinement in each case

and ordered the sentences to run concurrently. The trial court also certified that each



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of these cases “is a plea-bargain case, and the defendant has NO right of appeal.” See

Tex. R. App. P. 25.2(a)(2), (d). Knox has filed a pro se notice of appeal in each case.

       We notified Knox and his court-appointed appellate counsel that we had

concerns regarding Knox’s right to prosecute these appeals given the trial court’s

certifications. We further said that we would dismiss these appeals unless we received

a response showing grounds to continue them. See Tex. R. App. P. 25.2(a)(2), (d),

44.3. Both Knox and his counsel responded.

       In plea-bargain cases, a defendant may appeal only those matters that were

raised by written motion filed and ruled on before trial or after getting the trial court’s

permission to appeal. Tex. R. App. P. 25.2(a)(2); see Tex. Code Crim. Proc. Ann.

art. 44.02. The rules of appellate procedure define a plea-bargain case as one “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.” Tex. R. App. P. 25.2(a)(2). In his pro se response, Knox suggests Rule

25.2(a)(2) is inapplicable to these cases, arguing that they do not constitute plea-

bargain cases because the ten-year sentences he received exceed the four-year terms

the prosecutor recommended and that he agreed to.1             In a similar vein, in her

response, Knox’s counsel argues these are not plea-bargain cases because under the

terms of the agreements, Knox’s failure to appear for his scheduled sentencing on

       Knox raised other contentions in his response, but those additional
       1

contentions do not show grounds for continuing these appeals.


                                            3
December 27, 2017, revoked the agreements and, consequently, he was not sentenced

pursuant to those agreements. We do not agree with either of these contentions.

       The plea agreements here are akin to the ones at issue in State v. Moore, 240

S.W.3d 248 (Tex. Crim. App. 2007). The plea agreement in that case provided that

the defendant would plead guilty to the charged offense and that sentencing would be

delayed for six weeks. Id. at 249. The defendant also promised to appear for his

scheduled sentencing and not to commit any new offenses in the interim. Id. On the

condition that the defendant abide by these terms, the State offered to recommend a

twenty-five-year sentence. Id. But if the defendant failed to abide by those terms, the

agreement provided that the State would not recommend a punishment but that the

defendant’s plea would become an open plea “for the trial court to determine the

sentence based on the full punishment range, up to life in prison.” Id.

       At the time the defendant was sentenced, the State presented evidence that the

defendant had committed an assault during the six-week period between his plea and

his originally-scheduled sentencing. Id. Pursuant to the plea agreement, the State

refrained from making any sentence recommendation.            Id.   And although the

defendant asked the trial court to sentence him to the twenty-five years that the State

had originally agreed to recommend, the trial court declined to do so, sentencing him

to forty years’ incarceration. Id.

       The court of criminal appeals observed that the terms of the plea agreement

were not merely that the defendant would plead guilty in exchange for the State’s

                                           4
recommendation of a twenty-five-year sentence.         See id. at 255.    Rather, the

defendant’s promise to appear for sentencing and to refrain from committing

additional crimes, as well as the consequences that would happen if he failed to abide

by those promises—that the State would refrain from making a punishment

recommendation and the defendant would be subject to the full range of punishment

available—were themselves negotiated terms of the plea agreement. Id. at 253.

      As in Moore, the portions of the plea agreements Knox reached with the State in

these cases that provided his guilty pleas would be open to the court if he failed to

appear at his December 27, 2017 sentencing without any new offenses were

themselves negotiated terms of his plea agreements. See id. at 255. Thus, when Knox

failed to appear for his sentencing, it was pursuant to those agreements that his pleas

became open to the court. And Knox’s plea paperwork shows he was informed that

if the trial court found him guilty upon an open plea of guilty, his “punishment

[could] be set anywhere within the range of punishment prescribed by law for the

offense” and that once the trial court accepted his guilty plea, he could not withdraw

it without permission from the trial court.

      As charged in the indictments, both offenses Knox pleaded guilty to were

punishable as third-degree felonies. The range of confinement for a third-degree

felony is two to ten years. Tex. Penal Code Ann. § 12.34(a). The trial court’s

sentences of ten years’ confinement in both cases therefore did not exceed the range

of punishment prescribed by law for the charged offenses. Consequently, because the

                                              5
terms of Knox’s plea agreements subjected him to the full range of punishment

available for the charged offenses, he did not receive a punishment that exceeded the

one recommended by the prosecutor and agreed to by him. See Henderson v. State, No.

04-15-00651-CR, 2015 WL 9139689, at *1–3 (Tex. App.—San Antonio Dec. 16, 2015,

no pet.) (mem. op., not designated for publication) (holding that trial court’s sentence

did not exceed the one the prosecutor recommended and defendant agreed to where:

(1) defendant pleaded guilty in exchange for certain sentence recommendation from

the State, agreed to appear for sentencing, and agreed that the failure to appear

subjected him to the full range of punishment; (2) defendant failed to appear for

sentencing; and (3) trial court sentenced defendant to a greater term of confinement

than the State had originally recommended); Culpepper v. State, No. 09-09-00486-CR,

2010 WL 423761, at *1–3 (Tex. App.—Beaumont Oct. 27, 2010, no pet.) (mem. op.,

not designated for publication) (holding same).

      Since Knox pleaded guilty and his punishment did not exceed the punishment

recommended by the prosecutor and agreed to by him, these cases fall within Rule

25.2(a)(2)’s definition of a plea-bargain case. See Henderson, 2015 WL 9139689, at *2–

3; Culpepper, 2010 WL 423761, at *2–3. The trial court’s certifications do not show

that Knox obtained the trial court’s permission to appeal, and neither his pro se

response nor his counsel’s response provides any indication that he intends to appeal

a matter he raised by written motion filed and ruled on before trial. Accordingly, we



                                           6
dismiss the appeals. See Tex. R. App. P. 25.2(d), 43.2(f); Chavez v. State, 183 S.W.3d

675, 680 (Tex. Crim. App. 2006).




                                                    /s/ Lee Gabriel
                                                    Lee Gabriel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 28, 2019




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