Kevin Brantley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 18, 2024
• Docket: 01-23-00772-CR
• Status: Published

Opinion

Opinion issued June 18, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00772-CR ——————————— 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

2 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

3 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).