Michael Cochran v. State ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-05-059 CR ____________________

MICHAEL COCHRAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 159th District Court Angelina County, Texas Trial Cause No. CR-24656

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MEMORANDUM OPINION

Appellant Michael Cochran ⁽¹⁾ pled guilty without a plea bargain to sexual assault of a child. See Tex. Pen. Code Ann. § 22.011(a)(2)(B) (Vernon Supp. 2005). The record contains Cochran's written waiver of his right to appeal. Before accepting Cochran's guilty plea, the trial court admonished him of the consequences, including the range of punishment applicable to the offense charged. After conducting a sentencing hearing, the trial court sentenced Cochran to eighteen years of confinement, which is within the statutory range of punishment for the offense. See Tex. Pen. Code Ann. § 22.011(f) (Vernon Supp. 2005); Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003). Cochran filed this appeal, in which he contends the trial court failed to consider the full range of punishment. We dismiss for want of jurisdiction.

The defendant in a noncapital case may waive any of the rights secured him by law. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon 2005). Even without a plea bargain agreement, a waiver of the right to appeal that is freely and voluntarily made is binding upon the appellant. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003). The trial court's permission is required before a defendant may appeal after waiving his right to appeal. Id. The recitations in a certification of the right to appeal must be true and supported by the record. Odneal v. State, 161 S.W.3d 692, 694 (Tex. App.--Beaumont 2005, no pet.); Barcenas v. State, 137 S.W.3d 865, 865-66 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd).

During the hearing on Cochran's plea, the trial court admonished Cochran as follows: "Finally and very importantly, Mr. Cochran, if I deem that a conviction is appropriate here and there's sufficient evidence for that, you'll be giving up your right to appeal a conviction if I make that decision." On the same date, Cochran executed a written waiver of his right to appeal. By a handwritten notation, the trial court's certification indicates Cochran has the right to appeal "solely as to punishment."

We find nothing in the record indicating the trial court gave Cochran permission to appeal. We do not construe the handwritten notation on the certification order as granting permission to appeal. See generally Iles v. State, 127 S.W.3d 347, 350-51 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (Trial court's granting of appellant's request for appointed counsel and a free record on appeal did not constitute permission to appeal.); Betz v. State, 36 S.W.3d 227, 229 (Tex. App.--Houston [14th Dist.] 2001, no pet.) (Notation on trial court's docket sheet indicating defendant filed a notice of appeal was not tantamount to permission to appeal.). Cochran waived his right to appeal after being admonished in open court that he was doing so. Therefore, the trial court's certification is incorrect. We dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 25.2(a)(2).

APPEAL DISMISSED FOR WANT OF JURISDICTION.

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STEVE McKEITHEN

Chief Justice

Submitted on November 15, 2005

Opinion Delivered January 18, 2006

Do Not Publish

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

1.

Various documents in the appellate record also refer to appellant as "Michael Dwayne Cochran."