                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00026-CR



          JASON LAMON MAYES, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 6th District Court
               Lamar County, Texas
               Trial Court No. 27450




      Before Morriss, C.J., Burgess and Stevens, JJ.
                                                ORDER

           Jason 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, 1 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.

           We 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 of appeal.

           Mayes 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


1
    See TEX. HEALTH & SAFETY CODE ANN. § 481.120.

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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. 2 Finally, the trial court characterized the plea as “an

open plea capped at 6 years.”

            It is 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

appeal. 3

            In the 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.

            In 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


2
 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 in the certification of Mayes’ right of appeal.
3
    The trial court granted Mayes’ request for an appeal bond in March 2019.

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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. 37.1.

       All appellate timetables are stayed and will resume on our receipt of the supplemental

clerk’s record.

       IT IS SO ORDERED.

                                                  BY THE COURT

Date: August 21, 2019




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