OPINION
This is аn appeal from a conviction for burglary of a habitation. V.T.C.A. Penal Code, Sec. 30.02. Punishment was assessed by the court at ten years.
Initially there is a question as to whether this Court has jurisdiction of the appeal.
On September 12, 1977, appellant waived his right to trial by jury and entered a plea of guilty before the court. The court admonished appellant of his rights under Art. 26.13, V.A.C.C.P. Appellant’s written judicial confession was admitted into evidence. The trial court found the appellant guilty as charged. The following then occurred:
“[THE PROSECUTOR]: For the purposes of the record, the District Attorney’s office in this case would recommend ten years in the Texas Department of Correction and would further recommend that, if approved, it run concurrent with his parole violation.
“[DEFENSE COUNSEL]: Yes, sir, Your Honor, we would request that long with the jail time, but, of course, I think we cаn determine that satisfactorily at the time of sentencing later on.
“THE COURT: Do you want to retain custody of this? I will set sentencing then for Wednesday, September 22nd.
“[THE PROSECUTOR]: Thank you, Judge.
“THE COURT: If you all will, get togеther on the time and come on up.
“[DEFENSE COUNSEL]: All right, sir.
“THE COURT: Have you joined with the District Attorney’s office in the recommendation that the sentence be ten years in the Department of Correction to run concurrent with the probation revocation?
“[DEFENSE COUNSEL]: Yes, Your Honor, with the parole revocation.”
The transcription of the court reporter’s notes before us does not reflect what, if any, punishment was assessed on September 12, 1977. The judgment of conviction, however, which bears the date of Septеmber 12, 1977, shows that punishment was assessed at imprisonment for ten years.
The sentence was formally pronounced on October 3, 1977. The next day, appellant filed a рro se notice of appeal. This was done in the form of a letter to the judge, which clearly indicates the appellant’s desire to appeal. See Art. 44.08(a), V.A.C.C.P. It should be noted that in appellant’s letter to the judge he states: “When I was sentenced, you told me that I had a right to appeal' the sentence and could appeal at any time for a period of ten days after you sentenced me.” On January 12, 1978, appellant through counsel filed an “application fоr permission to appeal.” On January 18, 1978, the trial court entered an order, which reads in pertinent part:
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Defendant Ronnie Gene Decker, be, and hе is hereby denied permission of the Court to appeal his conviction in the above captioned cause, to which order of the Court the Defendant then and there excepted.”
Although the trial court’s order did not so expressly state, it appears that the *950 court denied appellant permission to appeal pursuant to Art. 44.02, V.A.C.C.P., 1 as amended effective August 29, 1977. See Acts 1977, 65th Leg., p. 490, ch. 351, Sec. 1. This statute now provides in pertinent part:
“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not еxceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have рermission of the trial court, except on those matters which have been raised by written motion filed prior to trial. . ” [Emphasis added.]
Despite the trial court’s attempted denial of appeal, a full record of the trial was prepared and is before us. In determining whether we have jurisdiction of the appeal under Art. 44.02, supra, we note the following:
1. The appellant pled guilty to the court.
2. The court assessed punishment.
3. The punishment assessed did not exceed the punishment recommended by the prosecutor.
It appears from the colloquy quoted above betweеn the court, counsel for the appellant, and counsel for the State, that the prosecutor had agreed to recommend as punishment in the instant casе that appellant be confined in the Department of Corrections for ten years and that such punishment would run concurrently with the appellant’s “parole violation.” Although it appears that appellant’s counsel agreed to this recommendation and also requested that the appellant be given his back “jаil time,” there is no showing in the record before us that the appellant personally agreed to the recommendation.
Article 44.02, supra, expressly states that it is аpplicable where the punishment recommended by the prosecutor is “agreed to
by the defendant and his attorney . .
.” [Emphasis supplied.] The question is thus presented whether it is necessary for a defendant to personally agree to the recommended punishment where his counsel has acquiesced in same. In
Rhynes v. State,
Tex.Cr.App.,
Clearly, Art. 44.02, supra, is more explicit in requiring the defendant’s personal consent than is Art. 35.23, supra, since Art. 44.02,. supra, requires agreement “by the defendant and his attorney.” We construe Art. 44.02, supra, to require the defendant to personally agree to the recommended punishment. In the instant case, the record fails to reflect appellant’s personal consent to the recommendеd punishment. It follows that the trial court cannot deny appellant his right to appeal under Art. 44.02, supra. The record being before us, we will consider the appeаl on its merits. 3
Appellant contends that the trial court failed to admonish him in accordance
*951
with Art. 26.13, V.A.C.C.P. Specifically, appellant complains that the trial cоurt failed to advise him “that he would be waiving his right to confront witnesses against him, or that the State of Texas would be required to prove appellant’s guilt beyond a reasonable doubt or that he would not be required to give testimony which would incriminate him.” Appellant concedes in his brief that “the judgment and written record of the court refleсts a waiver of these rights. . . . ” The stipulation of evidence, sworn to by appellant and approved by his counsel and the court, contains an express waiver оf appellant’s rights to a jury, confrontation and cross-examination of witnesses, and right against self-incrimination. See Arts. 1.13 and 1.15, V.A.C. C.P. He argues, however, that the record must affirmatively reflect that the judge advised him of these rights in open court. We disagree. Article 26.13, V.A.C.C.P., does not require that the judge make the specific inquiries in open court suggested by the appellant. See and compare
Boykin v. Alabama,
Appellant does not suggest that he was in any way misled or that he was not fully aware of his rights and the consequenсes of his plea. Neither does he allege that he was in any way harmed or misled in any manner by the admonishments given by the court. No objection was voiced to the аdmonishments in the trial court. We find that the trial court was in compliance with Art. 26.13, V.A.C.C.P., and conclude that no error is shown.
The judgment is affirmed.
Notes
.
In Ex parte Abahosh,
. Absent a showing that the defendant personally agreed to the separation of the jury after the charge is read, the burden is on the State to rebut the presumption of harm.
. We find it unnecessary to reach appellant’s contention thаt he was deprived of his constitutional rights by the court’s action in ordering that he be denied an appeal in light of our holding that appellant is entitled to his appeal.