Cedric Derane Shaw v. the State of Texas ( 2023 )

DISMISSED and Opinion Filed June 12, 2023
S 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. F-21-76289-V
MEMORANDUM OPINION
Before Justices Nowell, Goldstein, and Breedlove
Opinion by Justice Goldstein
Cedric Derane Shaw appeals his aggravated assault conviction. Appellant
pled guilty and, pursuant to the terms of a plea bargain agreement, the trial court
found appellant guilty and sentenced him to eight years’ confinement. In a single
issue, appellant argues the trial court should have sua sponte withdrawn his guilty
plea. In a single issue, the State asks this Court to reform the trial court’s judgment
to correctly reflect the terms of the plea bargain.1 We dismiss this appeal for lack of
jurisdiction.
In November 2021, appellant was charged by indictment with aggravated
robbery. The indictment alleged that appellant, while in the course of committing
theft of property and with intent to obtain or maintain control of said property, caused
serious bodily injury to complainant, by stomping complainant’s head into the floor.
On the day of trial, June 27, 2022, appellant entered into a plea agreement
with the State whereby the charged offense of aggravated robbery was reduced to
aggravated assault, appellant pled guilty, and the plea remained open as to the
availability of deferred probation and the “State capping prison time at 10 yrs.” At
trial, appellant testified he understood the trial court’s statement that the case
involved an “open plea” in that the court had “the full range of punishment between
probation and 10 years available” in sentencing him. In response to questioning
from the trial court, appellant said he pled guilty freely and voluntarily, and the trial
court entered appellant’s judicial confession into evidence. Following the
presentation of evidence, the trial court found appellant guilty and sentenced him to
eight years’ confinement. Appellant filed a motion for new trial challenging the
1
In its prayer, the State asks this Court to dismiss this appeal for want of jurisdiction. Alternatively,
the State asks this Court to overrule appellant’s issue and affirm the trial court’s judgment as modified. The
State does not ask that we both reform the trial court’s judgment and dismiss for lack of jurisdiction. Thus,
because we dismiss for lack of jurisdiction, we do not address the State’s cross-point.
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sufficiency of the evidence without specificity, which was overruled by operation of
law. This appeal followed.
In a single issue, appellant argues the trial court should have sua sponte
withdrawn his guilty plea. In response, the State contends this case should be
dismissed for lack of jurisdiction because appellant pled guilty pursuant to a plea
bargain 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). In a plea bargain case, i.e., one in which the defendant’s
plea is guilty or nolo contendere and the punishment does not exceed that
recommended by the prosecutor and agreed to by the defendant, a defendant may
appeal only: (a) those matters that were raised by written motion filed and ruled on
before trial; or (b) after getting the trial court's permission to appeal. TEX. R. APP.
P. 25.2(a)(2).2 A conviction based on an agreement that puts a “cap” on the
punishment for the charged offense is subject to the restrictions on appeal under Rule
25.2(a)(2). Waters v. State, 124 S.W.3d 825, 826 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d).
2
Specifically, in a plea bargain case, the defendant may appeal only (A) those matters that were raised
by written motion filed and ruled on before trial; (2) after getting the trial court's permission to appeal; or
(3) where the specific appeal is expressly authorized by statute. See TEX. R. APP. P. 25.2 (a)(2).
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In this case, appellant signed a plea agreement reflecting his guilty plea, a
reduction in the charge against him from aggravated robbery to aggravated assault,
and a “cap” of ten years’ confinement. However, on the form for the trial court’s
certification of appellant’s right to appeal: (1) none of the boxes is checked that
reflect a plea-bargain (including the one stating that the trial court has given
permission to appeal) or waiver of appeal; instead, (2) the box is checked that
indicates this was not a plea-bargain case and that appellant had the right to appeal.
Addressing this specific certification situation, the court in Waters concluded that,
despite the trial court’s certification, the Rule 25.2 requirements recited in a
certification must be true and supported by the record. Id. The court determined
that, because appellant entered a plea bargain, she could appeal only (1) matters
raised by written motion filed and ruled on before trial or (2) with the trial court’s
permission. See TEX. R. APP. P. 25.2(a)(2); Waters, 124 S.W.3d at 826.
The record before us is conflicting. While the trial court orally acknowledged
appellant’s right to appeal, the written record does not comply with the statutory
requirements. The plea bargain agreement provides that, “if the punishment
assessed by the Court is not greater than that which you have plea-bargained, you
may not appeal on any matter in the case unless the Court grants permission for the
appeal or the matters appealed were raised by written motions filed and ruled on
before the plea.” The waiver of right to appeal is not checked in that same
agreement, but appellant acknowledged, approved, and agreed to all waivers. The
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trial court’s certification does not reflect that appellant had the trial court’s consent
or permission to appeal, and the Rule 25.2 requirements recited in a certification
must be true and supported by the record. Here they are not.3 As appellant’s brief
indicates that he does not seek to appeal a matter raised by written motion filed and
ruled upon before trial, and the trial court failed to amend the certification, we have
no jurisdiction over an appeal of his conviction. See TEX. R. APP. P. 25.2(a)(2);
Waters, 124 S.W.3d at 827.
We dismiss this appeal for want of jurisdiction.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
220769F.U05
3
Appellant sought to amend the trial court’s certification of the right to appeal to reflect that, although
the parties entered into a plea bargain agreement, the agreement contemplated the right to appeal and the
trial court permitted the appeal. By order of November 22, 2022, we denied the motion because this Court
is not authorized to amend the trial court’s certification and concluded that the certification is defective.
We did, however, order the trial court to prepare an amended certification of the right to appeal within thirty
days. On January 12, 2023, we were advised that the District Clerk’s office had not received the requested
document. Without the amended certification, we are constrained to determine we lack jurisdiction over
the appeal.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CEDRIC DERANE SHAW, On Appeal from the 292nd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-21-76289-V.
No. 05-22-00769-CR V. Opinion delivered by Justice
Goldstein. Justices Nowell and
THE STATE OF TEXAS, Appellee Breedlove participating.
Based on the Court’s opinion of this date, this appeal is DISMISSED for
lack of jurisdiction.
Judgment entered June 12, 2023
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