Opinion
05-22-00769-CR
11-22-2022
CEDRIC DERANE SHAW, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F21-76289-V
ORDER
ERIN A. NOWELL, JUSTICE.
Before the Court is appellant's November 11, 2022 motion to amend the trial court's certification of the right to appeal. The certification filed in the clerk's record states this case is not a plea bargain case and appellant has the right to appeal. The plea agreement shows appellant agreed to enter an open plea of guilty in exchange for the State's agreement to cap its sentencing recommendation at ten years. During the plea hearing, the trial court accepted the parties' plea agreement restricting the punishment range to a maximum of ten years, but also indicated appellant was entering an open plea subject to the cap and advised him he had the right to appeal. The trial court assessed an eight-year sentence in conformity with the plea agreement.
An agreement between the defendant and the State to cap punishment constitutes a plea bargain agreement. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Menjivar v. State, 264 S.W.3d 137, 140-41 (Tex. App.- Houston [1st Dist.] 2007, no pet.). After entering into a plea bargain agreement, appellant may appeal under three circumstances: (1) if there are matters raised by written motion filed and ruled on before trial; (2) if appellant has obtained the trial court's permission to appeal; and (3) where a specific appeal is expressly authorized by statute. See TEX. R. APP. P. 25.2 (a)(2).
Appellant's motion requests that the Court amend the trial court's certification to reflect the trial court is permitting him to appeal. Appellant contends that although the parties entered into a plea bargain agreement to cap his punishment, the agreement contemplated he would be allowed to appeal, and the trial court intended to permit an appeal. Appellant contends that a document attached as an exhibit to his motion demonstrates the trial court's intent to permit his appeal. There is not, however, any exhibit attached to appellant's motion.
Even if appellant had attached the exhibit as he intended, and the Court agreed with appellant's assessment of the trial court's intentions, the appellate rules do not authorize the Court to amend the trial court's certification. See TEX. R. APP. P. 25.2, 37.1; see also Marsh v. State, 444 S.W.3d 654, 659 (Tex. Crim. App. 2014) (concluding court of appeals may order trial court to file amended certification, but appellate court may not dictate exactly what amended certification should say). Accordingly, we DENY appellant's motion to amend the trial court's certification.
Because the current certification states erroneously that appellant entered an open plea and thus has a right to appeal, we conclude the certification is defective. See TEX. R. APP. P. 25.2 (a)(2); Shankle, 119 S.W.3d at 813; Menjivar, 264 S.W.3d at 140-41.
We ORDER the trial court to prepare an amended certification of the right to appeal and file it with the Court within THIRTY DAYS of the date of this order.
We DIRECT the Clerk to transmit copies of this order to the Honorable Brandon Birmingham, Presiding Judge, 292nd Judicial District Court; and to counsel for the parties.