dissenting.
I respectfully dissent. The appellant was admonished that he would receive no more than twenty years for the offense for which he was convicted. He was assessed punishment at twenty-five years. Under such circumstances, I feel the majority is incorrect in requiring the appellant to show that he was harmed by the improper admonishment, and in not finding that appellant’s due process rights were violated.
The majority correctly states that in this case that: (1) a proper 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; and, that (2) 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. Before the plea of guilty was accepted, the appellant should have been admonished of the full range of punishment available through enhancement. Taylor v. State, 591 S.W.2d 826, 828 (Tex.Crim.App.1979); Ricondo v. State, 634 S.W.2d 837 (Tex.Crim.App.1981).
It is the well-established rule that “a failure of the trial court to admonish the defendant concerning the range of punishment is reversible error without regard to whether the defendant was harmed.” Walker v. State, 524 S.W.2d 712 (Tex.Crim. App.1975). In Ex parte McAtee, the Court of Criminal Appeals explained the Walker rule:
The reasoning behind this rule is that where the record indicates that the defendant has received an admonishment with respect to punishment, although not a complete one, there is a prima facie showing of a knowing and voluntary plea of guilty. The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and thus was harmed. Where there is a total failure to admonish concerning punishment, however, there is no prima facie showing; the defendant has received no *906warning whatsoever as to the punishment that is liable to be assessed. In such a case the danger of the defendant entering an unknowing and involuntary plea is so great that no specific harm need be shown. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Ex parte McAtee, 599 S.W.2d 335 (Tex.Crim.App.1980). (Emphasis mine).
In the instant case, the appellant received no warning whatsoever as to the punishment that could be and was in fact assessed against him. Rather, he was in effect admonished that such a punishment could not be assessed.
Tex.Code Crim.Proc.Ann. art. 26.13 (Vernon Pamph.1987) requires the court to admonish a defendant on the range of punishment before accepting a plea of guilty. It is insufficient if the admonishment comes from counsel. Jackson v. State, 587 S.W.2d 398 (Tex.Crim.App.1979). The statement by the State’s attorney does not constitute an admonishment, nor does defense counsel’s request for “the minimum sentence” after appellant had been found guilty demonstrate that the appellant entered his plea with the knowledge that a. twenty-five year sentence could be assessed.
In Weekley v. State, 594 S.W.2d 96 (Tex.Crim.App.1980), the Court reversed the conviction of an appellant who had been assessed a twenty-five year sentence after being admonished that he could not be assessed a term of more than twenty years. The Court, quoting and approving Tellez v. State, 522 S.W.2d 500 (Tex.Crim.App.1975), referred to the purpose of the punishment admonishment and noted the inapplicability of the “harm issue” as follows:
... the Court observed that the purpose of the punishment admonishment was “to avoid a situation where an accused thought his possible punishment could be a certain number of years and then (after he had entered his plea of guilty) learn that he had been assessed a greater punishment.” That observation is still sound today ... We do not consider the issue of harm under the circumstances because we conclude that on the facts of this case the admonishment did not constitute substantial compliance.
Weekley, 595 S.W.2d at 97.
Similarly, in Whitten v. State, 587 S.W. 2d 156 (Tex.Crim.App.1979), the Court did not require the appellant to show harm when there was no substantial compliance. The Court reviewed and recognized two circumstances where deficient admonishments are considered to be in substantial compliance with art. 26.13:
[1.] ... where an admonishment was not given but it was immaterial to the plea in that case, such as where the trial court failed to admonish on the non-binding character of prosecutorial recommendations and no prosecutorial recommendations had been made.
[2.] ... where a required admonishment is given, but is given in a different form than that prescribed in the statute yet which effectively satisfied the statutory requirements.
Whitten, 587 S.W.2d at 158.
As to the second circumstance,.the W,hit-ten Court explained that “there are two essential elements in these tolerated admonishments that are present in every case. First, the trial court gives the admonishment and, second, it is given directly to the Defendant.” Whitten, 587 S.W.2d at 158.
After the plea of guilty had been accepted, and after the trial court had found the two alleged prior offenses to have been committed by the appellant, the State’s attorney requested that the accused be assessed a fifty year sentence. In his argument to the trial court, the State’s attorney argued that since the court had found the defendant guilty of the two prior offenses the punishment range then goes from 25 years to 99 years or life.” Defense counsel, in his argument, requested the minimum sentence. The trial court did not give the required admonishment and the *907prosecutor's argument on the applicable punishment was directed to the court. Since there was no substantial compliance with art. 26.13, no harm need be shown. Whitten, 587 S.W.2d at 158.
The record does not affirmatively show that the appellant was aware of the consequences of his plea when he entered his plea of guilty. On the contrary, the record affirmatively shows that the appellant was made aware that he could be assessed a punishment of no more than twenty years. In effect, the appellant received a false admonishment from the court. I would hold that, such admonishment when combined with the twenty-five year sentence constituted a violation of appellant’s right to due process of law under the U.S. Constitution. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).