David Lee Hancock v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-318 CR ____________________

DAVID LEE HANCOCK, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B050203-R

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MEMORANDUM OPINION

David Lee Hancock pled guilty to the indictment for criminal mischief. See Tex. Pen. Code Ann. § 28.03 (Vernon Supp. 2006). The State abandoned its enhancement allegations and the parties both recommended the punishment be reduced to a misdemeanor, but the parties represented to the trial court that the plea was not being made pursuant to a plea bargain agreement. See Tex. Pen. Code Ann. § 12.44 (Vernon Supp. 2006). The trial court admonished Hancock. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2006). Hancock signed a judicial confession. The trial court convicted Hancock, assessed punishment at confinement in the county jail for 120 days, and ordered Hancock to pay restitution in the amount of $500.

Hancock is not represented by counsel on appeal. He retained counsel to represent him in the trial court and did not claim indigence either in the trial court or on appeal. Hancock failed to file a brief on appeal. On January 25, 2007, we ordered a hearing to determine whether Hancock desired to prosecute his appeal. Hancock did not appear at the hearing. The trial court found that Hancock had served his sentence and been released from the jail, that Hancock was notified of the hearing but failed to appear, and found that Hancock no longer desires to prosecute his appeal. Upon receiving the supplemental clerk's and reporter's records, we reinstated the appeal and submitted the appeal without briefs. See Tex. R. App. P. 38.8(b)(4).

We have examined the record for fundamental error, and find none. We note that the written judgment states there was a plea bargain agreement but the parties and the court stated in open court that no plea bargain agreement existed. The judgment of the trial court is modified to reflect that the appellant's guilty plea was an unagreed plea. As modified, the judgment is affirmed.

AFFIRMED AS MODIFIED.

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STEVE McKEITHEN

Chief Justice

Submitted on April 12, 2007

Opinion Delivered April 25, 2007

Do Not Publish

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