Brandon Rashad Burton v. State

Opinion

Order entered April 10, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00608-CR No. 05-18-00609-CR No. 05-18-00610-CR

BRANDON RASHAD BURTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F17-00846-U, F17-55788-U & F17-1651151-U

ORDER These appeals have been set for submission on May 28, 2019. The State’s brief, initially

due on March 2, 2019, was due on April 1, 2019.

On March 12, 2019, the State had filed an unopposed motion to abate these appeals. This

motion asked us to abate the appeals and return them to the trial court for an explicit finding on

whether appellant had the trial court’s permission to appeal. Because of the ambiguity in the

records, we granted the State’s motion in part and ordered the trial court to conduct a hearing to

determine, among other things, whether appellant pleaded guilty pursuant to plea bargain

agreements; whether appellant waived his right to appeal as part of the agreements; and whether

1 appellant was sentenced in accordance with the plea bargain agreements. We have now received

the trial court’s findings of fact.

In cause numbers 05-18-00608-CR (F17-00846-U) and 05-18-00609-CR (F17-55788-U),

we ADOPT the trial court’s findings that appellant pleaded guilty pursuant to a plea bargain

agreement, which included an agreement to cap the punishment; appellant did not waive his right

to appeal as part of the plea agreements in these cases; the trial court sentenced appellant in

accordance with the plea bargain agreements, imposing a six-month sentence in cause F17-

00846-U and a sentence of five years in F17-55788-U; and, further, despite the plea bargain

agreements, the trial court granted appellant permission to appeal the convictions in F17-00846-

U and F17-55788-U. In addition, the supplemental clerk’s records we have received in F17-

00846-U and F17-55788-U contain the trial court’s findings and its amended certifications

giving appellant permission to appeal in each case.

In cause number 05-18-00610-CR (F16-51151-U), we ADOPT the trial court’s findings

that appellant negotiated two distinct plea agreements with the State in this case, an agreement to

plead guilty and an agreement to plead true; appellant agreed to plead guilty in exchange for the

State recommending he be placed on deferred-adjudication community supervision for three

years; when the State moved to adjudicate him guilty, the parties reached a second agreement

that included an agreement to cap his punishment, and in exchange for appellant’s plea of true to

the allegations in the State’s motion to adjudicate, the State agreed to recommend a maximum

punishment of six years’ confinement; appellant agreed to waive his right to appeal as a part of

the first plea agreement, the agreement to plead guilty, but he did not waive his right to appeal as

part of the second plea agreement, the agreement to plead true; upon adjudication, the intention

of both parties and the trial court was that appellant would retain his right to appeal his

2 adjudication; the trial court followed both plea agreements, initially placing appellant on deferred

adjudication as recommended by the State under the first plea agreement, and upon adjudication,

the trial court sentenced appellant in accordance with the second plea agreement, imposing a

sentence of five years’ incarceration and ordering the sentence run concurrently with the two

other cases, as provided in the plea paperwork; and, finally, despite the plea bargain agreements

and the appellate waiver, the trial court granted appellant permission to appeal in that case. The

supplemental clerk’s record we have received in F16-51151-U includes the trial court’s findings

of fact.

In light of the above, appellant has the right to appeal in all three cases. See TEX. R. APP.

P. 25.2(a)(2) (in a plea-bargained case a defendant may appeal only those matters raised by

written motion filed and ruled on before trial, or after getting court’s permission to appeal);

Hargesheimer v. State, 182 S.W.3d 906, 912 (Tex. Crim. App. 2006) (after adjudication of guilt,

a defendant’s appeal is restricted only by article 42.12 § 5(b), which prevents him from

appealing the trial court’s decision to adjudicate guilt in the first place); Carender v. State, 155

S.W.3d 929, 931 (Tex. App.—Dallas 2005, no pet.) (agreement to plead guilty in exchange for

State’s recommended “cap” on sentencing is a plea bargain under rule 25.2(a)(2)); Radford v.

State, No. 05-18-00764-CR, 2018 WL 6616896, at *1 (Tex. App.––Dallas Dec. 18, 2018, no

pet.) (mem. op., not designated for publication) (rule governing plea-bargain appeals does not

restrict a defendant’s right to appeal in a plea-bargained case for deferred adjudication

community supervision). All these cases will remain submitted on the docket for May 28, 2019.

We hereby ORDER the State to file its brief in the above cases, if any, within twenty-one

(21) days from the date of this order.

The Court hereby REINSTATES these appeals and directs the Clerk of the Court to send

3 copies of this order to 291st Judicial District Court and counsel for all parties.

/s/ LANA MYERS JUSTICE