Order filed May 20, 2021
In The
Eleventh Court of Appeals
__________
11-19-00230-CR
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DAMON CHAD CAMPBELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR15110
ORDER
Upon preparing this appeal for submission on briefs, it came to the attention
of this court that Appellant, Damon Chad Campbell, requested in his brief that this
appeal be abated so that the trial court can correct the Certification of Defendant’s
Right of Appeal. We have reviewed the record and the authorities cited by Appellant
and have concluded that Appellant is correct: the “charge bargain” in this case
constituted a plea bargain subject to Rule 25.2(a)(2) of the Texas Rules of Appellate
Procedure. Accordingly, we abate the appeal, remand the cause to the trial court,
and direct the trial court to enter an amended certification that comports with the
record. See TEX. R. APP. P. 25.2(d).
Appellant was indicted for six counts of possessing or promoting child
pornography. In exchange for Appellant’s plea of guilty to Count One, the State
agreed to abandon Counts Two through Six. The record reflects that the State moved
to dismiss these five counts and that the trial court granted the State’s motion. With
the dismissal of five of the six counts, the maximum sentence that could be assessed
against Appellant was capped at twenty years; whereas, if Appellant had been
convicted for six counts, he would have been subject to six twenty-year sentences
that could have been ordered to run cumulatively. See TEX. PENAL CODE ANN.
§ 3.03(b)(3) (West Supp. 2020), § 12.33(a) (West 2019), § 43.26(e), (g) (West
2016). The trial court conducted a hearing on punishment and assessed Appellant’s
punishment at imprisonment for seventeen years and a fine of $3,000.
The trial court indicated at sentencing that this was “not a plea bargain
agreement” and signed a certification of Appellant’s right of appeal that also
indicated that this was not a plea bargain case. Because the specific sentence or
punishment was not agreed upon in the plea agreement—here, a “charge bargain”—
we would generally have agreed with the trial court that the plea agreement in this
case was not subject to Rule 25.2(a)(2). However, the Court of Criminal Appeals
has determined otherwise.
In Shankle v. State, the Court of Criminal Appeals held that, where a charge
bargain effectively caps the maximum punishment, the charge bargain constitutes a
plea bargain that falls within Rule 25.2(a)(2). Shankle v. State, 119 S.W.3d 808,
812–14 (Tex. Crim. App. 2003); see Harper v. State, 567 S.W.3d 450, 454–55 (Tex.
App.—Fort Worth 2019, no pet.). In such a situation, the defendant may appeal only
(1) if matters were raised by written motion and ruled on before trial, (2) if the trial
court grants permission to appeal, or (3) if the specific appeal is expressly authorized
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by statute. TEX. R. APP. P. 25.2(a)(2). Because the trial court’s certification in this
cause reflects that this is not a plea bargain case and that Appellant has the right of
appeal, we abate this cause, as did the court in Harper, and direct the trial court to
amend its certification. See Harper, 567 S.W.3d at 455.
The district clerk is directed to prepare and forward to this court a
supplemental clerk’s record containing the amended certification of Appellant’s
right of appeal. See TEX. R. APP. P. 34.5(c)(2). The supplemental clerk’s record
containing an amended certification is due to be filed in this court on or before
June 21, 2021. Appellant’s request for supplemental briefing will be considered
upon reinstatement of the appeal.
The appeal is abated.
PER CURIAM
May 20, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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