In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00018-CR
___________________________
DORJEAN RENEE BAILEY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1454212D
Before Pittman, J.; Sudderth, C.J.; and Kerr, J.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant Dorjean Renee Bailey pled guilty to aggravated assault with a deadly
weapon, and a jury convicted her and sentenced her to five years’ confinement.
Because Appellant entered into a charge bargain and the trial court’s amended
certification states that she has no right of appeal, we dismiss this appeal.
A grand jury indicted Appellant with three counts:
Count One aggravated assault causing serious bodily injury;
Count Two aggravated assault causing bodily injury, and a deadly weapon was
used or exhibited; and
Count Three failure to stop and render aid.
The first two counts charged second-degree felonies, Tex. Penal Code Ann.
§ 22.02(a), (b) (West 2011); the third count charged a third-degree felony, Tex.
Transp. Code Ann. § 550.021(a), (c)(1)(B) (West Supp. 2018).1
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The first two counts alleging aggravated assault should appear as two
paragraphs of a single count, see Tex. Code Crim. Proc. Ann. art. 21.24(a) (West 2009);
Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007). Convictions on both
would violate double jeopardy. See Martinez, 225 S.W.3d at 554; see, e.g., Mohammed v.
State, No. 02-15-00127-CR, 2016 WL 3659113, at *10 (Tex. App.—Fort Worth July 7,
2016, no pet.) (mem. op., not designated for publication). Count Three—alleging that
Appellant failed to stop and render aid—appears to charge a distinctly different
offense from aggravated assault. Compare Tex. Penal Code Ann. § 22.02(a) with Tex.
Transp. Code Ann. § 550.021(a); see, e.g., Stinecipher v. State, 438 S.W.3d 155, 161–
63 (Tex. App.—Tyler 2014, no pet.) (holding that criminally negligent homicide and
failure to stop and render aid are not the same offenses because they have different
gravamina, different units of prosecution, and exclusive elements).
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In a hearing before jury selection and outside the venire panel’s presence, the
prosecutor stated: “The charge which the State is planning on proceeding on, just
Count Two of the aggravated assault with a deadly weapon, if [Appellant] does as she
has indicated and plead[s] guilty to that count. If that occurs, we will waive Counts
One and Three of the indictment.” Appellant pled guilty to Count Two—aggravated
assault with a deadly weapon—and elected a jury trial on punishment. Thereafter, the
prosecutor confirmed that the State would waive Counts One and Three.
In the same pretrial hearing, Appellant’s counsel waived a motion in limine,
averred that “the State ha[d] provided . . . everything that they’re required to,” and
answered, “I think that’s it, Your Honor,” when the magistrate judge asked,
“Anything else then?”
After sentencing Appellant in accordance with the jury verdict, the trial court
stated on the record that Appellant has the right of appeal. Similarly, the trial court’s
original certification of Appellant’s right to appeal provided that her case “is not a
plea-bargain case and [she] has the right to appeal.” However, the State’s agreement
to waive Count Three in exchange for Appellant’s guilty plea to Count Two is a
charge bargain, which qualifies as a plea bargain subject to rule 25.2(a)(2) of the Texas
Rules of Appellate Procedure. See Tex. R. App. P. 25.2(a)(2), (d); Shankle v. State,
119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003); see also Kennedy v. State, 297 S.W.3d
338, 342 (Tex. Crim. App. 2009).
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We therefore abated this appeal on October 5, 2018, so that the trial court
could amend its certification of Appellant’s right to appeal to comport with the
record. See Tex. R. App. P. 25.2(d), 34.5(c)(2). On October 9, 2018, the trial court
signed an amended certification stating that this “is a plea-bargain case, and
[Appellant] has NO right of appeal.”
An appeal “must be dismissed if a certification that shows the defendant has
the right of appeal has not been made part of the record.” Tex. R. App. P. 25.2(d).
Under rule 25.2 of the Texas Rules of Appellate Procedure, we must “dismiss a
prohibited appeal without further action, regardless of the basis for the appeal.”
Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).
Because the trial court has now certified that Appellant entered into a plea
bargain and has no right of appeal, we dismiss this appeal. See Tex. R. App. P.
25.2(a)(2), (d), 43.2(f); Chavez, 183 S.W.3d at 680; Angel v. State, No. 02-17-00231-CR,
2018 WL 4140738, at *1–2 (Tex. App.—Fort Worth Aug. 30, 2018, no pet. h.) (mem.
op., not designated for publication); Moore v. State, No. 02-17-00216-CV,
2017 WL 6759035, at *1 (Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (mem. op.,
not designated for publication).
Per Curiam
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 21, 2018
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