Gonzales v. State

OPINION

NYE, Chief Justice.

This is an appeal from a plea of guilty to attempted burglary of a habitation. Punishment, enhanced by two prior felony convictions, was assessed at twenty-five years. By three points of error, appellant complains that the trial court failed to properly admonish him of the consequences of his plea, thereby making it involuntary and depriving him of his constitutional right to due process of law. Appellant specifically contends that the trial court’s admonishment on the range of punishment was insufficient. We disagree and affirm the judgment of the trial court.

Appellant was charged by indictment with attempted burglary of a habitation. The indictment also alleged that appellant had two previous felony convictions. Appellant pled guilty to the primary offense and “not true” to the enhancement portion of the indictment. Trial was before the court.

Before any admonishments were given, the following transpired:

THE COURT: All right. How do you plead to the indictment, guilty or not guilty?
THE DEFENDANT: Guilty, Your Hon- or.
THE COURT: Is that guilty to—
THE DEFENDANT: To attempted burglary.
THE COURT: —the first count, attempted burglary, and not guilty as to the remaining—
THE DEFENDANT: Yes, sir.
THE COURT: —which contains, I think, reference to two prior convictions?
MR. GONZALEZ (defense counsel): Right. We are entering not true to those enhancements.

The trial judge then admonished appellant on the range of punishment applicable to the offense of attempted burglary of a habitation in the following manner:

THE COURT: All right. Now, one charged with this offense, that is, attempted burglary, may be punished by confinement. This is — this is a second degree, is it?
[DEFENDANT’S ATTORNEY]: Yes, sir.
THE COURT: All right. You may be confined in the Texas Department of Corrections for a period not less than 2, nor more than 20 years, and fined up to $10,000. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And based on your plea alone, to this charge, that could be the sentence of the Court, 20 years in the penitentiary. Do you understand?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Or up to that amount.... All right. Now, after the explanations concerning the possibility of punishment, do you still wish to plead guilty?
THE DEFENDANT: Yes, Your Honor.

No admonishment on the range of punishment applicable for a repeat offender or habitual felony offender was given. The court accepted the plea of guilty and found appellant guilty.

*904The State then proved that appellant had previously been finally convicted of two felony offenses. Appellant did not present any evidence to rebut the enhancement allegations. The trial court found the enhancement portion of the indictment to be true and adjudged appellant to be a habitual felony offender. Pursuant to Tex. Penal Code Ann. § 12.42 (Vernon Supp.1987), a habitual felony offender may be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than ninety-nine years or less than twenty-five years.

Tex.Code Crim.Proc.Ann. art. 26.13 (Vernon Pamph.1987) requires a trial court to admonish a defendant on the range of punishment attached to an offense before accepting a plea of guilty. The admonishment must come from the trial court, and it is insufficient if the admonishment comes from counsel. Jackson v. State, 587 S.W. 2d 398 (Tex.Crim.App.1979); Murray v. State, 561 S.W.2d 821, 822 (Tex.Crim.App.1977).

The purpose of this admonishment is to insure that the defendant enters his plea with full knowledge of its consequences. An affirmative showing of such knowledge is constitutionally required. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Whitten v. State, 587 S.W.2d 156, 158 (Tex.Crim.App. 1979). “Consequences” of a plea has been interpreted to mean the punishment provided by law for the offense and which can be inflicted under the plea. Eubanks v. State, 599 S.W.2d 815, 816 (Tex.Crim.App.1980).

When a defendant pleads guilty to an indictment that alleges prior convictions for enhancement purposes, the accused should be admonished of the full range of punishment available through enhancement. Taylor v. State, 591 S.W.2d 826, 828. (Tex.Crim.App.1979). See also, Ricondo v. State, 634 S.W.2d 837 (Tex.Crim.App.1981). In the instant case, a full admonishment would have informed appellant that the primary offense was punishable by confinement for not less than two or more than twenty years with a possible fine of ten thousand dollars. Tex.Penal Code Ann. § 30.02 (Vernon 1974). In addition, the appellant should have been admonished that in the event the State proved one prior felony conviction, the punishment range would then be five to ninety-nine years or life, and if two prior convictions were proved, the range would then be twenty-five to ninety-nine years or life. Tex.Penal Code Ann. § 12.42 (Vernon Supp.1987).

When a trial court completely fails to admonish a defendant, such failure constitutes reversible error without regard to whether the defendant was harmed. But where the record indicates that the defendant received an admonishment with respect to punishment, although not a complete one, there is a prima facie showing that the plea of guilty was knowingly and voluntarily made. The burden shifts to the defendant to show that he entered the plea without understanding the consequences of his action and was “misled or harmed by the admonishment of the Court.” Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App.1984); Ex parte McAtee, 599 S.W.2d 335, 336 (Tex.Crim.App.1980); article 26.13.

This is not a case, however, where the trial court completely failed to admonish the accused on the range of punishment. Appellant pled guilty only to the primary offense. He pled “not true” to the enhancement allegations and placed the burden upon the State to introduce sufficient evidence to support those allegations.

In addition, the record as it was developed, fails to show that appellant was harmed. During closing arguments at the sentencing hearing, the State recommended that appellant receive a sentence of fifty years for the burglary and the enhancement. Appellant’s attorney responded by requesting that the court assess the minimum term (twenty-five years for the burglary and the enhancement). The colloquy between appellant’s attorney and the State’s attorney before the court clearly *905shows that appellant was not “misled” by the court’s admonishment. Appellant did not object to the trial court’s failure to fully admonish him; he did not at any time attempt to withdraw his plea; and he did not file a motion for new trial. Appellant received the sentence he requested: twenty-five years.

While it would have been better practice for the trial court to completely admonish the accused on the punishment possibilities which might occur should the trial court find one or both of the enhancement allegations true, we find that the trial court substantially complied with art. 26.13 by instructing the accused on the punishment range applicable to the primary offense alleged, the only allegation to which he pled guilty. Under these circumstances, the burden shifted to appellant to show that he entered his plea without understanding the consequences of his actions or that he was misled by the trial court.

Where there is no showing that a defendant was prejudiced or injured by the failure of the trial court to fully comply with Article 26.13, that failure to fully comply will not constitute reversible error on appeal. Guster v. State, 522 S.W.2d 494, 495 (Tex.Crim.App.1975). Appellant cannot now complain that he was misled or injured by the trial court’s failure to fully comply with Article 26.13.

The record here affirmatively shows that appellant was admonished to the portion of the indictment to which he pled guilty. If it can be argued that appellant was unaware of the plea’s consequences or was misled by the trial court, the burden is on the appellant to demonstrate such harm. No harm was shown by this appellant.

Appellant’s points of error are overruled and the judgment of the trial court is AFFIRMED.