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Date: 05-16-2018

Case Style:

Scott Greenberg v. The State of Texas

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Case Number: 02-17-00297-CR

Judge: PER CURIAM PANEL: PITTMAN, SUDDERTH, and BIRDWELL

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney: Joseph W. Spence

Defendant's Attorney: Barry J. Alford

Description: In exchange for a four-year prison sentence, Appellant pled guilty and
judicially confessed to possessing less than a gram of the controlled substance
25I-NBOMe, a state jail felony,2 and pled true to the enhancement allegations
elevating his sentence to that of a second-degree felony.3 See Tex. Health &
Safety Code Ann. §§ 481.1021, 481.1151(a)–(b)(1) (West 2017); Tex. Penal
Code Ann. § 12.425(b) (West Supp. 2017). Appellant does not challenge any
pretrial rulings, and the trial court did not give him permission to appeal. The trial
court’s certification of appeal provides that this is a plea-bargained case and
Appellant has no right of appeal. See Tex. R. App. P. 25.2(a)(2), (d).
Accordingly, we informed Appellant by letter that his appeal would be
subject to dismissal based on the trial court’s certification unless he or any party
desiring to continue the appeal filed a response showing grounds for continuing
the appeal. See Tex. R. App. P. 25.2(d), 44.3. Appellant’s responses, including
2We note that the degree of offense for possessing 25I-NBOMe is measured in abuse units, not grams. See Tex. Health & Safety Code Ann. § 481.1151(b) (West 2017); see also id. § 481.002(50) (defining “abuse unit”). 3Appellant was admonished twice: once when he entered an open plea of guilty and again when he reached a bargain with the State. At the time of his open guilty plea, he was admonished correctly as to the range of confinement— two to twenty years—for a state jail felony enhanced by two prior successive final felony convictions. See Tex. Penal Code Ann. § 12.33(a) (West 2011), § 12.425(b). The admonishments Appellant signed later as part of his bargain incorrectly provided that he faced a range of confinement of two to ten years for a state jail felony punished as a third-degree felony. Nevertheless, Appellant’s agreed-upon sentence of four years lies within both the actual and misstated ranges. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Compare Tex. Penal Code Ann. § 12.33(a) (providing the range of confinement for a second-degree felony is two to twenty years), with id. § 12.34(a) (West 2011) (providing the range of confinement for a third-degree felony is two to ten years).
3
his “Motion of Appellant’s Pro-se Response,” do not show grounds for continuing
the appeal.
Rule 25.2(a) allows a plea-bargaining defendant to appeal only matters
raised by written motion and ruled on before trial or only with the trial court’s
permission. Tex. R. App. P. 25.2(a)(2). Appellant therefore has no right of
appeal.4 See Tex. R. App. P. 25.2(a), (d).

Outcome: Accordingly, we dismiss all pending motions, and we dismiss this appeal in
conformity with the trial court’s certification of appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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