Opinion
01-23-00772-CR
03-14-2024
Kevin Brantley v. The State of Texas
Trial court: 209th District Court of Harris County, Trial court case number: 1572990
ORDER OF ABATEMENT
Veronica Rivas-Molloy Judge
Appellant Kevin Brantley filed a notice of appeal of the trial court's September 29, 2023 judgment convicting him of murder. Appellant, originally charged with capital murder, entered a plea of guilty to murder and requested that his punishment be set by the trial court.
On March 6, 2024, Appellant's appointed counsel filed a Motion to Abate to Determine Appellant's Right to Appeal stating that "[d]ue to the conflicting information in the clerk's record," he "cannot certify to this Court that [Appellant] in fact waived his right to appeal." The Trial Court's Certification of [Appellant's] Right of Appeal dated October 6, 2022, annexed to the notice of appeal and contained in the clerk's record, has markings that reflect both that Appellant has the right of appeal and waived the right of appeal. See Tex. R. App. P. 25.2(a)(2) (trial court shall enter certification of defendant's right of appeal each time it enters a judgment of guilty; in plea bargain cases in which defendant's punishment did not exceed prosecutor's recommendation and was agreed to by defendant, defendant may appeal only in certain circumstances). The Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession also dated October 6, 2022 and signed by Appellant states that "in exchange for the [S]tate giving up their right to trial[,] [Appellant] agree[d] to waive any right of appeal . . . ." Further, the transcript of the October 6, 2022 plea proceeding, filed on March 6, 2024, reflects that Appellant waived his right of appeal.
Given this lack of clarity, Appellant requests we abate the appeal to determine the status of his right to appeal. Appellant's Motion to Abate is granted. We abate the appeal and remand the case to the trial court for the trial court to execute an amended Certification of Appellant's Right to Appeal that clearly reflects whether Appellant retained or waived his right of appeal. See Tex. R. App. P. 25.2(f). The trial court clerk is directed to file a supplemental clerk's record containing the amended Certification of Appellant's Right of Appeal. The supplemental clerk's record shall be filed with this Court no later than 30 days from the date of this order. See Tex. R. App. P. 34.5(c)(2).
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record is filed with the Clerk of this Court or on the Court's own motion.
It is so ORDERED.