“If the appellate court determines that the certification is defective, the clerk must notify the parties so that the defect can be remedied.”
How later courts described this case
- “If the appellate court determines that the certification is defective, the clerk must notify the parties so that the defect can be remedied.”
Written by the judges who cited it.
The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Brodrick Michael James v. The State of Texas
Appellate case number: 01-15-00102-CR; 01-15-00103-CR; 01-15-00104-CR
Trial court case number: 74207, 74208, 74209
Trial court: 149th District Court of Brazoria County
The Clerk of the Court has examined the clerk’s records in these appeals and found that
they do not comport with the Texas Rules of Appellate Procedure because the certifications of
appellant’s right to appeal are defective. See TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d
610, 613 (Tex. Crim. App. 2005) (“If the appellate court determines that the certification is
defective, the clerk must notify the parties so that the defect can be remedied.”). Without agreed
recommendations as to punishment, appellant, Brodrick Michael James, pleaded guilty to three
felony offenses of delivery of a controlled substance. In each case, the trial court executed a
certification of appellant’s right to appeal, limiting his right to appeal only the punishment stage
of trial. James and the State agree in their appellate briefing that the certification of the right to
appeal is defective to the extent it purported to limit the appeal to issues arising from the
punishment stage of trial.
A criminal defendant has a right to appeal, see TEX. CODE CRIM. PROC. art. 44.02, but he
also has a right to waive “any rights secured him by law.” Id. art. 1.14(a). A waiver of rights
must be made knowingly, intelligently, and voluntarily. See Ex parte Delaney, 207 S.W.3d 794,
796–97 (Tex. Crim. App. 2006). A pretrial or presentencing waiver of appeal is made knowingly
when there is an agreed recommendation as to sentencing because the defendant knows the
sentence he will receive. See id. at 798. Other consideration, such as the State’s agreement to
consent to waiver of a jury trial also will support a pretrial waiver of appeal. See Ex parte
Broadway, 301 S.W.3d 694, 697–99 (Tex. Crim. App. 2009).
The appellant pleaded guilty without an agreed recommendation as to punishment or
other consideration from the State in exchange for his waiver of appeal. The record shows that
there was a bargain between the appellant and the State: in exchange for a guilty plea and waiver
of a presentence investigation, the State agreed to consent to the waiver of a jury for sentencing.
Waiver of the right to appeal was not expressly made part of this bargain. Although James
acknowledged in open court that he was waiving his right to appeal except as to punishment, the
fact that there was no agreed recommendation as to punishment or bargained-for consideration in
exchange for his plea make any waiver of appeal unenforceable. See Delaney, 207 S.W.3d at
798–99.
Because the appellant’s brief has been filed, amendment of the certification may be done
only with leave of and on the terms prescribed by the appellate court. TEX. R. APP. P. 25.2(f). We
therefore abate this appeal and remand this case to the trial court. We order the trial court to
amend the certifications to show that James has the right of appeal in each case. See id.; Terrell
v. State, 264 S.W.3d 110, 113–14 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A
supplemental clerk’s record containing the amended certifications is due in this Court on
Monday, September 12, 2016.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Acting for the Court
Panel consists of Chief Justice Radack and Justices Brown and Massengale
Date: August 18, 2016