Brodrick Earl Ross v. the State of Texas

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-21-00089-CR ___________________________

BRODRICK EARL ROSS, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1484823D

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

After the State agreed to drop a capital-murder charge (Count One) in

exchange for appellant Brodrick Earl Ross’s open guilty plea to murder, Ross entered

an open plea to a first-degree murder charge (Count Two). The trial court then found

him guilty of first-degree murder and sentenced him to 25 years in prison. See Tex.

Penal Code Ann. § 19.02(c). Ross attempts to appeal from that conviction.

After reviewing the record in this case, we determined that the State’s

agreement to waive Count One in exchange for Ross’s open guilty plea to Count Two

was a charge bargain, which qualifies as a plea bargain subject to Texas Rule of

Appellate Procedure 25.2(a)(2). See Tex. R. App. P. 25.2(a)(2); Shankle v. State, 119

S.W.3d 808, 813 (Tex. Crim. App. 2003); Harper v. State, 567 S.W.3d 450, 455 (Tex.

App.—Fort Worth 2019, no pet.). Although this case is a plea-bargain case, the trial

court’s certification of Ross’s right to appeal stated that this case “is not a plea-bargain

case, and the defendant has the right of appeal.” 1 We thus notified the parties and the

trial-court judge on October 8, 2021, that the certification appeared to be defective

1 It appears from the reporter’s record that there was some confusion about the charge bargain’s effect on Ross’s right to appeal. At the end of the sentencing hearing, the trial court informed Ross that “this was not a plea bargain case, which basically means you have a right to appeal. It’s a limited right since you’ve pled guilty to [murder].”

2 because it did not accurately reflect the record, and we requested an amended

certification from the trial court.2 See Tex. R. App. P. 25.2(d), (e), 37.1.

On October 11, 2021, the trial court signed an amended certification stating

that this “is a plea-bargain case, and the defendant has NO right of appeal.” Shortly

after the trial court signed the amended certification, Ross moved the trial court to

amend it to reflect that the case “is a plea-bargain case, but the trial court has given

permission to appeal, and the defendant has the right of appeal.” See Tex. R. App. P.

25.2(a)(2)(B). The trial court signed an order on Ross’s motion that, on its face, both

granted and denied Ross’s request for permission to appeal, and thus rendered the

trial court’s amended certification ambiguous. 3

Not yet realizing that the amended certification was ambiguous, we notified the

parties that we had received the trial court’s amended certification and warned them

that we might dismiss the appeal unless Ross or any party desiring to continue the

appeal filed a response showing grounds for continuing the appeal. See Tex. R. App.

In addition to the charge-bargain issue, we pointed out that Ross had “signed 2

written waivers in which he waived any and all rights of appeal in this case.” 3 The substance of the trial court’s typewritten order states “that the Motion [to amend the trial court’s amended certification] be GRANTED.” The order further states that “[t]he trial court hereby files a subsequent Trial Court’s Certification of Defendant’s Right of Appeal stating that the case ‘is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right to appeal.’” But the trial court did not, in fact, file a “subsequent Trial Court’s Certification” reflecting that it “ha[d] given permission to appeal.” And although the trial court signed the order, the court handwrote the word “[d]enied” just above the signature line.

3 P. 25.2(a)(2), (d), 44.3. In response, Ross filed a “Motion to Continue Appeal, Motion

to Strike Certification[,] and Response to Court’s Intent to Dismiss Appeal.”

Shortly after Ross filed his motion, we recognized that we were faced with an

ambiguous record regarding Ross’s right to appeal and thus abated the appeal and

remanded the case to the trial court “for entry of a second amended certification

clearly and unambiguously reflecting whether [Ross] has the right to appeal.” On

January 24, 2022, the trial court signed a second amended certification, which, like its

first amended certification, stated that this “is a plea-bargain case, and the defendant

has NO right of appeal.” On March 29, 2022, we received a copy of the second

amended certification signed by Ross, and we reinstated the appeal. 4

Because the trial court’s second amended certification is substantively identical

to its first amended certification, we apply the arguments Ross makes in his “Motion

to Continue Appeal, Motion to Strike Certification[,] and Response to Court’s Intent

to Dismiss Appeal” to the second amended certification.5 In his motion, Ross urges

us to continue the appeal because the trial court should have given him permission to

appeal; because “[i]t would be equitable and just to allow [him] to have the case

examined” before he is required to serve his 25-year sentence since “at best” Ross was

“a party to the offense of murder and was not personally responsible for its

Although Ross signed the second amended certification, he did not indicate 4

whether he had received a copy of the certification or whether the trial court had informed him of the certification and that he had waived his right to a copy. 5 We overrule those arguments as moot as to the first amended certification.

4 commission”; and because allowing him “the right to appeal this lengthy sentence

would promote the due administration of justice in this case.” For these reasons, Ross

also asks us to strike the second amended certification under Rule of Appellate

Procedure 25.2(f)—which provides that an amended certification can be “struck for

cause on the motion of any party affected by” the amended certification—and to

allow him to proceed under the trial court’s original certification. Tex. R. App. P.

25.2(f).

Ross’s arguments do not provide a valid basis for continuing this appeal

because this case does not fit any of the recognized bases for a plea-bargain appeal:

(1) “those matters that were raised by written motion filed and ruled on before trial,”

(2) “after getting the trial court’s permission to appeal,” and (3) “where the specific

appeal is expressly authorized by statute.” Tex. R. App. P. 25.2(a)(2); see Tex. Code

Crim. Proc. Ann. art. 44.02. And we decline to strike the trial court’s second amended

certification.

Accordingly, consistent with the trial court’s second amended certification, we

dismiss the appeal. See Tex. R. App. P. 43.2(f).

/s/ Elizabeth Kerr

Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: May 5, 2022