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


                  No. 06-17-00197-CR



     DEIONTRAY DEWAYNE DARDEN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 124th District Court
                Gregg County, Texas
              Trial Court No. 45,313-B




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

       Deiontray Dewayne Darden and his brother, Devante Damon Darden, pled guilty to and

were convicted of murder in the 124th Judicial District Court of Gregg County. Deiontray was

tried under trial court cause number 45,313-B, and his appellate cause number is 06-17-00197-

CR. Devante was tried under trial court cause number 45,315-B, and his appellate cause number

is 06-17-00208-CR.

       The procedural history of the brothers’ cases is, essentially, identical. Each brother pled

guilty to the offense of murder in exchange for an agreed cap on the punishment that could be

assessed. Deiontray agreed to a punishment cap of forty years’ imprisonment, and Devante agreed

to a punishment cap of fifty years’ imprisonment. By separate letters, we advised counsel for each

of the Darden brothers, as well as the trial court, that the agreed-to punishment cap rendered these

two cases plea bargain cases 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 either appeal and afforded each brother the opportunity to demonstrate to this Court how it

had jurisdiction notwithstanding the noted defect.

       Devante’s appeal, cause number 06-17-00208-CR, has been abated to the trial court for

purposes of securing a proper certification of Devante’s right of appeal. In the meantime, counsel

for Deiontray has filed a response to this Court’s jurisdictional defect letter that includes a motion

to abate the case to the trial court for further proceedings regarding Deiontray’s right of appeal.

Deiontray’s response to our jurisdictional defect letter states, “[Deiontray] would show the Court


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that a pleading styled Plea Agreement . . . indicates that the parties at trial anticipated a punishment

cap of 40 years would be recommended to the trial court. That cap was not agreed to by the

parties.” However, the record belies Deiontray’s characterization of the agreement. First, the

recommended punishment cap appears on a pre-printed form entitled “PLEA AGREEMENT.”

The line immediately following the title states, “IT IS MUTUALLY AGREED AND

RECOMMENDED BY THE PARTIES,” and under a section labeled “Other punishment

recommendations” appears the handwritten phrase “[p]unishment cap of 40 years.” The plea

agreement was signed by Deiontray, his attorney, and the attorney for the State. The circumstances

of Devante’s plea are substantially similar, though the recommended cap was fifty years for

Devante.

        As we view both of the Darden brothers’ cases, they were plea agreement cases under Rule

25.2(a)(2) of the Texas Rules of Appellate Procedure and Shankle. Consequently, we have

jurisdiction over these appeals only (1) if there were matters that were raised by written motion

that was filed and ruled on before trial1 or (2) if the trial court grants its permission to appeal. In

the absence of either of these circumstances, we lack jurisdiction and will be required to dismiss

the appeals for want of jurisdiction.

        In light of the foregoing and as requested by counsel for Deiontray, we abate this case to

the trial court for further proceedings. The trial court shall use whatever means necessary to secure

a proper certification of defendant’s right of appeal in compliance with Rule 25.2(d). Once



1
 We note that, under this circumstance, our jurisdiction would be limited solely to the matters that were raised and
ruled on before trial.
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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 March 6, 2018.

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 timetable are stayed and will resume on our receipt of the supplemental

clerk’s record.

       IT IS SO ORDERED.

                                                  BY THE COURT

Date: February 13, 2018




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