Cochran, Ex Parte Michael Dwayne

• Court: Court of Criminal Appeals of Texas
• Decided: May 20, 2009
• Docket: AP-76,156
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,156

EX PARTE MICHAEL DWAYNE COCHRAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-24656-A IN THE 159 TH JUDICIAL DISTRICT COURT FROM ANGELINA COUNTY

Per curiam.

OPINION

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of guilty to

sexual assault of a child, and was sentenced to eighteen years’ imprisonment. The Ninth Court of

Appeals dismissed Applicant’s appeal for want of jurisdiction. Cochran v. State, No. 09-05-059-CR

(Tex. App. – Beaumont, January 18, 2006).

Applicant contends, inter alia, that he was denied his right to appeal issues related to his

sentencing for this offense. We remanded this application to the trial court for findings of fact and 2

conclusions of law, and for supplementation of the habeas record with copies of the plea documents.

Based on the supplemental record, it appears that Applicant waived his right to appeal prior

to sentencing, and that the waiver was therefore not effective as to any issues arising during the

sentencing phase of his trial. Furthermore, the trial court certified that this was not a plea bargain

case, and that Applicant had the right to appeal punishment issues. The court of appeals erroneously

dismissed Applicant’s appeal for want of jurisdiction.

We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal

of the judgment of conviction in Cause No. CR-24656-A from the 159th Judicial District Court of

Angelina County. Applicant is ordered returned to that time at which he may give a written notice

of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. All time limits

shall be calculated as if the sentence had been imposed on the date on which the mandate of this

Court issues. We hold that, should Applicant desire to prosecute an appeal, he must take affirmative

steps to file a written notice of appeal in the trial court within 30 days after the mandate of this Court

issues.

Delivered: May 20, 2009 Do Not Publish