Cedric Derane Shaw v. the State of Texas ( 2022 )

Order entered November 22, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00769-CR
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
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
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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.
/s/ ERIN A. NOWELL
JUSTICE
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