concurring.
MICHOL O’CONNOR, Justice, concurring on remand from the Texas Court of Criminal Appeals.
In Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App.1999), the Texas Court of Criminal Appeals held that the admonishments required by Texas Code of Criminal Procedure article 26.13(a), are not constitutionally required.1 The Court reasoned that the purpose of the admonishments was to “assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered.” Id. The Court concluded that, because the admonishments are for the benefit of only the trial judge, they did not involve any constitutional protections. Id. Therefore, the Court held the error should be reviewed for non-constitutional error under new Texas Rule of Appellate Procedure 44.2(b). Id.
I disagree with everything about the Court’s analysis. I believe (1) the admonishment regarding the range of the punishment is constitutionally required to ensure that the defendant makes a knowing and voluntary plea of guilty; (2) the purpose of the admonishment is to ensure that the plea is both knowing and voluntary, and thus it is for the benefit of the defendant, not the judge; (8) the admonishment regarding the range of punishment is eonsti-tutionally protected because the defendant cannot make a “knowing” plea without that information; and (4) because the error is constitutional, it should be reviewed as constitutional error under Texas Rule of Appellate Procedure 44.2(a).
It is beyond absurd to think the appellant in this case received equivalent information about the range of punishment from the prosecutor’s voir dire statements. The prosecutor’s mention of the range of punishment during voir dire was not a substitute for an admonishment by the judge for at least two reasons. First, the appellant does not speak English, and the record does not disclose whether the translator interpreted the voir dire. Second, even if interpreted, we do not know if the appellant heard and understood the implications of the range of punishment. The statements by the prosecutor were not directed to the appellant, they were directed to the venire panel jury. Neither the prosecutor nor the judge asked the appellant if he understood the range of punishment.
A plea of guilty should not be accepted unless it is free and voluntary. Tex.Code Crim. P. art. 26.13(b). A free and voluntary plea can be made only by a defendant who knows and appreciates the extreme consequences his plea may entail. The trial judge has the duty to see that the defendant understands the consequences of pleading guilty.
*928The error in this ease, in failing to admonish the appellant regarding the range of punishment, is remarkably similar to the error in Whitten v. State, 587 S.W.2d 156 (Tex.Crim.App.1979). In both cases the defendant initially pled not guilty. Id. at 157. In both eases the prosecutor mentioned the punishment range in voir dire. Id. at 157. In both cases the defendant changed his mind after he pled guilty and trial had begun. Id. at 157. In neither case did the trial judge remember to admonish the defendant regarding the range of punishment. Id. at 157. Only the results of the two cases are different. In Whitten, the Court of Criminal Appeals— relying on Article 26.13(c), which requires reversal if no admonishment is given— reversed. Id. at 159. In this case, the Court of Criminal Appeals — relying on Rule 44.2(b) — instructs us to apply the “other error” harm analysis, which compels affirmance.
The Whitten Court held that the purpose of this admonishment is to assure that the defendant entered his plea with full knowledge of its consequences. Whitten, 587 S.W.2d at 158. It then went on to say that an affirmative showing of such knowledge is constitutionally required. Id. (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)). The “consequences” of a plea has been interpreted to mean the punishment provided by law for the offense and that can be inflicted under the plea. Eubanks v. State, 599 S.W.2d 815, 816 (Tex.Crim.App.1980).
Whitten was not an aberration. The Court of Criminal Appeals has repeatedly reversed cases under similar circumstances. See, e.g., McDade v. State, 562 S.W.2d 487, 488 (Tex.Crim.App.1978) (after evidence introduced, defendant changed his plea to “guilty”; court did not admonish him about range of punishment); Fuller v. State, 576 S.W.2d 856, 856-57 (Tex.Crim.App.1979) (after State rested, defendant changed his plea to “guilty”; court did not admonish him about range of punishment); Stewart v. State, 580 S.W.2d 594, 595 (Tex.Crim.App.1979) (in trial before a jury on plea of guilty, court did not admonish defendant about range of punishment).
Nothing has changed about the substantive law regarding admonishments of the range of punishment since the Court of Criminal Appeals decided Whitten, McDade, Fuller, and Stewart. Only two things have changed; the membership of the Court and the new Court’s adoption of a new appellate standard to review trial error. See Tex.R.App. P. 44.2. The obvious purpose of the new standard is to reduce the number of cases reversed on appeal by making most errors non-reviewable, and by making the few that are reviewable non-reversible.
The issue then is whether a state court, by changing its rules of appellate procedure, can trump the United States Constitution and a state statute. I do not think it can. Rights that the United States Supreme Court and an earlier Court of Criminal Appeals have held to be constitutionally protected cannot lose their protection simply by the election of new members to a court and the adoption of a new appellate rule governing the standard of review.
The Court of Criminal Appeals ordered us in this case to conduct a harm analysis, relying on two cases for authority, McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) and Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). As Justice Cohen pointed out in his concurring opinion in High v. State, 998 S.W.2d 642, 645-49 (Tex.App.—Houston [1st Dist.] 1999, pet. ref'd) (Cohen, J. concurring), neither case supports the Court of Criminal Appeals’s holding.
That the Court of Criminal Appeals relies on McCarthy to support its rationale is, quite frankly, embarrassing. McCarthy supports the opposite of what the Court holds. The Court of Criminal Appeals quotes extensively from McCarthy for support of its premise that an admonishment *929of range of punishment is not constitutionally required and that the purpose of the admonishment is merely to aid the trial court in determining whether the plea was voluntary. Aguirre-Mata, 992 S.W.2d at 498-99. McCarthy, however, did not involve any constitutional issues; McCarthy involved Federal Rule of Criminal Procedure 11. The United States Supreme Court specifically said it was avoiding any constitutional issue regarding admonishments:
This decision is based solely upon our construction of Rule 11 and is made pursuant to our supervisory power over the lower federal courts; we do not reach any of the constitutional arguments petitioner urges....
394 U.S. at 464, 89 S.Ct. at 1169.
The Court of Criminal Appeals ignores language in McCarthy that is at odds with its holding. For example, in McCarthy, the Supreme Court held that when a plea of guilty is not voluntary and knowing, it is void because it was obtained in violation of due process. 394 U.S. at 466, 89 S.Ct. at 1171. I do not believe the Court of Criminal Appeals can ignore the effects of a void plea by simply shifting the burden to the defendant on appeal. For this error on this record, it is impossible for the appellant to show that he did not hear or understand what the prosecutor was talking about when he mentioned the range of punishment. If the appellant could have preserved error by making a record of the fact that he did not hear or understand, the act of preserving the error would have called the error to the trial court’s attention.
The second case on which the Court of Criminal Appeals relies is its opinion in Cain. The admonishment issue in Cain involved the failure to warn a United States citizen that non-citizens could be deported, not (as in this case) the failure to admonish about range of punishment. Cain, 947 S.W.2d at 264. The failure to admonish about deportation in Cain was obviously harmless. There is no constitutional right to be told about deportation. State v. Jimenez, 987 S.W.2d 886, 889 (Tex.Crim.App.1999). By comparison, the right to be told the range of punishment when pleading guilty is constitutionally protected. Boykin, 395 U.S. at 244 n. 7, 89 S.Ct. at 1713 n. 7.2
Because I am of the opinion the majority has correctly applied Rule 44.2(b) to the facts of this case according to the remand order of the Court of Criminal Appeals, I reluctantly concur. I remain convinced that our original opinion was correct, that the error is constitutional, and that the Court of Criminal Appeals was wrong in remanding the case for application of the harm analysis under Rule 44.2(b).
. Article 26.13 states in part:
(a)Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of the punishment attached to the offense;
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(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed pri- or to trial;
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(b) No plea of guilty or plea of nolo conten-dere shall be accepted by the court unless it appears that ... the plea is free and voluntary.
(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequence of his plea and that he was misled or harmed by the admonishment of the court.
TexCode Crim. P. art. 26.13.
. Most scholars believe the Boykin case settled the issue regarding the trial court’s duty to admonish the defendant about the consequences of his plea or to determine if he has been advised by others. As an example, in the American Law Reports' "Later Case Service,” it states that the annotation, Court’s Duty to Advise or Admonish Accused as to Consequences of Plea of Guilty, or to Determine that He is Advised Thereof, 97 A.L.R.2d 549 (1964), was discontinued because the Boykin decision "has largely settled the subject matter of this annotation.” After the Court of Criminal Appeal’s decision in this case, A.L.R. should consider starting a Texas-only supplement for that otherwise out of date annotation.