Kevin Brantley v. the State of Texas ( 2024 )

Opinion issued June 18, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00772-CR
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KEVIN BRANTLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1572990
MEMORANDUM OPINION
Appellant Kevin Brantley filed a notice of appeal of the trial court’s
September 29, 2023 judgment convicting him of murder. Brantley, originally
charged with capital murder, entered a plea of guilty to murder and requested that
his punishment be set by the trial court. The trial court’s certification of Brantley’s
right of appeal dated October 6, 2022, annexed to the notice of appeal and contained
in the clerk’s record, had markings that reflected both that Brantley has the right of
appeal and waived the right of appeal. Brantley’s appointed counsel filed a Motion
to Abate to Determine Brantley’s Right to Appeal, stating that “[d]ue to the
conflicting information in the clerk’s record,” he could not “certify to this Court that
. . . Brantley in fact waived his right to appeal.”
On March 14, 2024, we granted the motion, abated the appeal, and remanded
the case to the trial court for the trial court to execute an amended certification that
clarified whether Brantley retained or waived his right of appeal. See TEX. R. APP.
P. 25.2(f). In response to our order, the trial court filed a supplemental clerk’s
record, containing an amended certification dated March 20, 2024, reflecting that
Brantley “waived the right of appeal.” Brantley’s appointed appellate counsel also
filed a notice stating we lack jurisdiction over the appeal because the appellate record
“affirmatively shows [that Brantley] has no right to appeal because he waived his
right to appeal[,] and supports a finding that [his] waiver of appeal is valid.”
A defendant in any criminal prosecution for any offense may waive any rights
secured him by law. TEX. CODE CRIM. PROC. art 1.14. A valid waiver of appeal—
one made voluntarily, knowingly, and intelligently—prevents a defendant from
appealing without the trial court’s consent. Carson v. State, 559 S.W.3d 489, 492–
93 (Tex. Crim. App. 2018). “[A] defendant may knowingly and intelligently waive
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his appeal as part of a plea when consideration is given by the State, even when
sentencing is not agreed upon.” Id. at 494 (“hold[ing] that the State’s waiver of its
right to a jury was sufficient consideration to render Appellant’s waiver of his right
to appeal knowing and intelligent”).
Under the Code of Criminal Procedure, a defendant may not waive his right
to a jury trial unilaterally. The court and the State must consent to the waiver. See
TEX. CODE CRIM. PROC. art. 1.13(a) (“The defendant in a criminal prosecution for
any offense other than a capital felony case in which the [S]tate notifies the court
and the defendant that it will seek the death penalty shall have the right, upon
entering a plea, to waive the right of trial by jury, conditioned, however, that, except
as provided by Article 27.19, the waiver must be made in person by the defendant
in writing in open court with the consent and approval of the court, and the attorney
representing the [S]tate.”). In his Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession dated October 6, 2022, Brantley stated in open
court and prior to entering his plea, that he “waive[d] the right of trial by jury,” and
that “in exchange for the State waiving [its] right to a jury trial, [he] intend[ed] to
enter a plea of guilty without an agreed recommendation of punishment from the
[State] . . . .” Brantley further stated that “in exchange for the [S]tate giving up [its]
right to trial, [he] agree[d] to waive any right of appeal which [he] may have.”
Brantley thus waived his right of appeal in exchange for consideration from the
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State. See TEX. CODE CRIM. PROC. art. 1.13(a); Carson, 559 S.W.3d at 492–96. The
trial court’s amended certification stating that Brantley “waived the right of appeal”
is supported by the record.
The abatement is lifted and the appeal is reinstated on this Court’s active
docket. We dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f).
We deny any pending motions as moot.
PER CURIAM
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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