OPINION
This is аn .application for writ of habeas corpus filеd pursuant to Article 11.07, Vernon’s Ann.C.C.P.
The petitioner contends that he was wrongfully denied his right to appeal. We agree. The record reflects that on December 13,1978, thе petitioner and a co-defendant 1 entered pleas of nolo contendere to the offense of theft. The State introduced into evidence the petitioner’s waiver of his right to a jury trial, his written stipulation of еvidence, and a penitentiary packet. When thе State rested, petitioner’s counsel said that petitioner would offer no proof, “except we аsk that a pre-sentence investigation be conducted concerning defendant Sterling.” The court then found рetitioner guilty of the offense and ordered the pre- *537 sentence investigation. On January 18, 1979, a hearing was held on the pre-sen-tence investigation, and the judge assеssed punishment at ten years confinement. When petitioner was sentenced on January 29, 1979, the court denied his nоtice of appeal because he had entered a plea of nolo contendere. The judge stated,
“Until such time as the Court of Criminal Appeals says Article 44.02 does not apply to all pleas of guilty but only to those pleas of guilty where there has been a plea bargaining, I have not been giving permission to аppeal.”
Article 44.02, supra, provides:
“A defendant in a criminal action has thе right of appeal under the rules hereinafter prescribed, provided, however, before the defendаnt who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the electiоn of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by thе prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, hе must have permission of the trial court, except оn those matters which have been raised by written motion filed prior to trial. This article in no way affects apрeal pursuant to Article 44.17 of this Chapter.” (Emphasis addеd)
There is no evidence in the record to indicate that a plea bargain agreement was made, or that such was followed by the trial court. Consequently, this is not a case under Article 44.02, supra, where the accused must have the trial court’s permission to appeal. See
Decker v. State,
The relief prayed for is granted.
Notes
. Pursuant to a plea bаrgain agreement, the co-defendant was placed on probation for ten years.