                         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).


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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).


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