                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-20-00029-CR
                              __________________

                   DAVID WAYNE BRANTLEY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

__________________________________________________________________

               On Appeal from the 253rd District Court
                       Liberty County, Texas
                      Trial Cause No. CR34212
__________________________________________________________________

                         MEMORANDUM OPINION

      David Wayne Brantley was indicted for possession of a controlled substance

with intent to deliver, “namely, methamphetamine, in an amount of one gram or

more but less than four grams,” in trial cause number CR34212. See Tex. Health &

Safety Code Ann. § 481.112(c). The indictment also alleged a prior felony

conviction of “Possession of Controlled Substance (3rd [degree])[.]” See Tex. Penal

Code Ann. § 12.42. There was also a pending related charge in cause number
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CR34791 for the manufacture or delivery of substance in Penalty Group 1, in an

amount of one gram or more, but less than four grams.

      The record demonstrates that on October 15, 2019, the case was called for

trial and Brantley, his defense attorney, and the State’s attorney appeared and

announced they had reached an agreement. Under the agreement, Brantley agreed to

plead guilty to the charges and true to the enhancement paragraph, allow a PSI to be

completed, and have the trial court assess punishment. In exchange for his plea, the

State agreed it would waive a jury trial and allow Brantley to “12.45” the other

related charge. 1 The State introduced exhibits at the October 15th hearing which

included signed Written Plea Admonishments, waivers and stipulations, together

with a written Agreed Punishment Recommendation, and a Post-Conviction Waiver.

      The trial court verbally admonished Brantley and Brantley confirmed on the

record that he understood the charges against him, the range of punishment, that he

is pleading guilty, admitting his guilt, waiving a jury trial, and giving up his right to

appeal. Brantley also verbally confirmed he was pleading “true” to the enhancement




      1  Texas Penal Code section 12.45, “Admission of Unadjudicated Offense[,]”
allows a defendant, with the consent of the State’s attorney, to admit during the
sentencing hearing his guilt of one or more unadjudicated offenses and request the
trial court take each into account in determining his sentence for the offense of which
he has been found guilty. See Tex. Penal Code Ann. § 12.45.
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paragraph, was pleading guilty because he was guilty, and that he had done so freely

and voluntarily.

      On January 23, 2020, the trial court reconvened for a sentencing hearing. The

State and Brantley appeared with their attorneys, the trial court received the PSI with

two letters presented by the defense, heard testimony from Liberty County Sheriff’s

Deputy John Michael Mendoza, admitted evidence, and heard arguments from the

attorneys. The trial court found the evidence supported a finding of guilt, found

Brantley guilty of the offense as charged, and assessed punishment at 25 years in the

Institutional Division of the Texas Department of Criminal Justice. The trial court

signed a Judgment of Conviction by Court—Waiver of Jury Trial on January 24,

2020. The trial court also entered the Trial Court’s Certification of Defendant’s

Right of Appeal, which reflects Brantley’s initials and signature and states that it

was “a plea-bargain case, and the defendant has NO right of appeal[.]” Brantley filed

a notice of appeal on January 23, 2020. On February 21, 2020, Brantley’s attorney

filed a Motion to Amend Certificate of Appealability in the trial court, arguing that

the Certificate was defective because he had a plea agreement, but had no agreement

on punishment and should have the right to appeal his sentence. The trial court

denied the motion.



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         The appellate rules provide that, if the “certification of [a] defendant’s right

of appeal in a criminal case is defective, the clerk must notify the parties of the defect

so that it can be remedied, if possible.” Tex. R. App. P. 37.1. Our clerk of court

notified the parties that absent a certification from the trial court that the defendant

has the right of appeal, the appeal would be dismissed. The defendant filed a

response and argued that because he agreed to a plea but there was no agreement on

the punishment and because he did not enter into a bargained-for-exchange such that

he waived his right of appeal, he has the right to appeal his sentence and the

certificate is erroneous. We requested and received the full record from the trial

court.

         The Court of Criminal Appeals has held that a defective certification includes

one that is “correct in form but which, when compared with the record before the

court, proves to be inaccurate.” Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim.

App. 2005). A certification that is contrary to the record before the appellate court

is defective. Id. at 615. An appellate court is obligated to review the record to

determine if the certification is contrary to the record and therefore defective. See

id.; see also Marsh v. State, 444 S.W.3d 654, 659 (Tex. Crim. App. 2014) (an

appellate court is “obligated to compare the certification with the record to ascertain

whether a certification is defective and act accordingly”).

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      According to the record in this case, Brantley agreed to plead guilty to

possession of a controlled substance with intent to deliver and agreed to the

enhancement paragraph, in exchange for the State’s agreement to waive a jury trial

and allow Brantley to make an admission of guilt under Texas Penal Code section

12.45 on the related unadjudicated charge. Brantley and his attorney announced the

agreement on the record and Brantley executed written waivers and stipulations that

are in the record. Even though the State and Brantley did not agree upon a sentence

recommendation, the record demonstrates that consideration was given by the State

for the waiver and Brantley waived his right to an appeal. See Ex parte Broadway,

301 S.W.3d 694, 699 (Tex. Crim. App. 2009) (a defendant may knowingly and

intelligently waive his entire appeal as a part of a plea, even when sentencing is not

agreed upon, where consideration is given by the State for that waiver).

      We conclude that the trial court’s certification is not defective. See Kennedy

v. State, 297 S.W.3d 338, 339 (Tex. Crim. App. 2009) (holding that a charge bargain

constitutes a plea agreement for purposes of Tex. R. App. P. 25.2(a)(2)); Shankle v.

State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (concluding that in a charge-

bargain case, the defendant may only appeal matters he either raised by written

motion that was filed and ruled on before trial or matters he received the trial court’s

permission to appeal). Because the record does not contain a certification that shows

                                           5
Brantley has the right of appeal, we must dismiss the appeal. See Tex. R. App. P.

25.2(d). Accordingly, we dismiss the appeal.

      APPEAL DISMISSED.

                                                  PER CURIAM


Submitted on May 5, 2020
Opinion Delivered May 6, 2020
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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