Court of Appeals of Texas, Sixth District, Texarkana
Appeal from the 6th District Court Lamar County, Texas Trial
Court No. 27450
Morriss, C.J., Burgess and Stevens, JJ.
Lamon Mayes pled guilty to the offense of delivery of
marihuana in an amount of five pounds or less, but more than
one-fourth ounce,  in exchange for an agreed six-year cap on
the punishment he could be assessed. After pleading guilty,
Mayes elected to have the trial court assess punishment. In
its judgment of conviction, the trial court did not exceed
the agreed punishment cap.
advised counsel for Mayes, as well as the trial court, that
the agreed to punishment cap rendered this case a plea
bargain case for purposes of Rule 25.2(a) of the Texas Rules
of Appellate Procedure. See Tex. R. App. P.
25.2(a)(2); Shankle v. State, 119 S.W.3d 808 (Tex.
Crim. App. 2003). We further advised the interested parties
that it appeared this Court lacked jurisdiction to hear the
appeal and afforded Mayes the opportunity to demonstrate to
this Court how it had jurisdiction notwithstanding the noted
defect. And, because the trial court's certification of
Mayes' right of appeal did not appear to accurately
reflect the realities of this case, we asked the trial court
to have filed with this Court, in a supplemental clerk's
record, a properly signed certification of Mayes' right
has filed a response to this Court's jurisdictional
defect letter stating that he entered an open guilty plea.
Although Mayes acknowledged that the written plea
admonishments in this case include a six-year punishment cap
and that the reporter's record includes a similar
recitation, he notes that he did not sign a waiver of his
right of appeal. Mayes further claims that the case is
replete with acknowledgments of his right to appeal. On the
record, the trial court asked Mays, "I understand,
though, by way of this plea agreement there is a cap of six
years. Is that your understanding?" Mayes responded
affirmatively. Later, the trial court stated, "There are
no agreements other than a cap of 6 years." This
statement was followed by the trial court's statement to
Mayes that he retained the right of appeal. Finally, the
trial court characterized the plea as "an open plea
capped at 6 years."
evident that the parties and the trial court treated this
case as an open plea since there was no specific sentencing
recommendation agreed to by the State and Mayes. However, the
State and Mayes did agree to a cap on punishment. Yet, as
explained in our letter, a cap on punishment constitutes a
punishment recommendation for purposes of Rule 25.2(a)(2).
Despite this fact, it appears that the parties and the trial
court intended for Mayes to retain his right of
meantime, the trial court has filed with this Court an
amended certification of Mayes' right of appeal stating
that this "is a plea-bargain case and the defendant has
NO right of appeal." Both Mayes and his counsel have
declined to sign the trial court's proposed amended
certification. Consequently, a compliant certification of
Mayes' right of appeal has yet to be filed in this Court.
light of the foregoing, we abate this case to the trial court
for a hearing to determine Mayes' right of appeal,
following which the trial court shall secure a proper
certification of defendant's right of appeal in
compliance with Rule 25.2(d). Once properly completed and
executed, the certification shall be filed with this Court in
the form of a supplemental clerk's record. See
Tex. R. App. P. 34.5(a)(12). The trial court shall cause the
supplemental clerk's record to be filed with the clerk of
this Court on or before September 9, 2019. This order
constitutes notice to all parties, pursuant to Rule 37.1 of
the Texas Rules of Appellate Procedure, of the defective
certification in this cause. See Tex. R. App. P.
appellate timetables are stayed and will resume on our
receipt of the supplemental clerk's record.
See Tex. Health & Safety
Code Ann. § 481.120.
In a plea bargain case, such as this
one, "a defendant may appeal . . . after getting the
trial court's permission to appeal." Tex.R.App.P.
25.2(a)(2)(B). Here, Mayes argued that the trial court gave
him permission to appeal on the record. However, that
permission is not reflected ...