Order entered November 22 , 2022

In The 

### Court of Appeals **Fifth District of Texas at Dallas** No. 05 - 22 - 00769 - CR CEDRIC DERANE SHAW , Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 292n d Judicial District Court Dallas County, Texas Trial Court Cause No. F 21 - 76289 -V O RDER Before the Court is appellant ’ s November 11, 2022 motion to amend the trial court ’ s certification of the right to appeal

. The certificati on f ile d in the clerk ’ s record states this case is not a plea bargain case and appellant has the right to appeal. The plea agreement s hows appellant agreed to enter an open plea of guilty in exchange for the State ’ s agreement to cap its sente ncing recommendation at ten years. During th e plea hearing, the trial court ac cepted the parties ’ plea agreement restrict ing the punishment ran ge to a maximum of ten years , but also indicated– 2

– appellant was entering an open plea subject to the cap and advised him he had the right to appeal. The trial c ourt assessed an eight

- year sent ence i n conformity with the plea agree ment
. An agreement between the defendant and the State to cap punish ment constitutes a plea b argain agreemen t
. Se e Shankle v. State , 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Menji var v. State , 264 S.W. 3d 1 3 7, 140

– 41 (Tex. App.

— H ouston [1st Dist.] 2007, no pet.). After ent ering into a plea bargain agreement, appellant may appeal under three circu mstances: (1) if there are matter s raised by writte n motion filed and ruled on before tr ial; (2) if appellant has obtained the trial court ’ s permission to appeal; and (3) where a s pecific appeal is expressly authorized by statute. See T E X . R. A PP . P. 25.2 (a)(2). Appellant ’ s motion reques ts that the C ourt amend t he trial court's certificatio n to reflect the trial court is permitting him to appeal

. A ppellant contends that although the parties en t ered into a plea bargain agreement to cap his pun ishment , the agreement contemplated he would be allowed to appeal , and the trial cou rt intended to pe rmit an appeal

. Appel lant contends that a document attached as an exhibit to his motion demonstrates the trial court ’ s intent to permit his appeal . T here is not, however, an y e xhibit attached to appellant ’ s moti on . E ven i f appellant had attached the exhib it as he intended, and the Court agreed with appellant ’ s assessment of the trial court ’ s intentions , t he appellate– 3

– r

ules do not authorize the C ourt to amend the trial court ’ s certification. See T E X . R. A PP . P. 25.2 , 37.1 ; see also Mar sh v. State , 444 S.W.3 d 654, 659 (Tex. Cr im. A pp . 2014) ( concludin g court of appeals m ay order trial court to file amended certification , but appellate court may not dictate exactly what amended certification should say). Accordingly, we DENY appellant ’ s motion to am end the tri al court ’ s certification. Because the current certification states erroneously th at appellant entered an open plea and thus has a right to appeal , we conclude the certification is defecti ve. Se e T E X . R. A PP . P. 25.2 (a)(2) ; Shankle , 1 1 9 S .W.3d at 813 ; Menj ivar , 264 S.W. 3d at 140

– 41

. W e ORDER the trial court to prepare a n amended certi f i ca tion of the right to appeal and file it with the Court wi thin THIRTY DAYS of the date of this order. We DIRECT the Clerk to transmit copies of this order to the Honorable B randon Birmingham, Presiding Judge, 292nd Judicial District Court; and to

co unsel for the parties.

/ s/ ERIN A. NOWELL JUSTICE