Cedric Derane Shaw v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 22, 2022
• Docket: 05-22-00769-CR
• Status: Published

Opinion

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

–2– 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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