Joyner v. State

BAIRD, Judge,

concurring.

On direct appeal, appellant contended his plea was involuntary because the trial judge failed to give the Tex.Code Crim.Proc.Ann. art. 42.12, § 5(a) admonishment which requires the defendant be informed “orally or in writing of the possible consequences under Subsection (b) of this section of a violation of community supervision.” The Court of Appeals, relying on Price v. State, 866 S.W.2d 606 (Tex.Cr.App.1993), rejected appellant’s argument. The Court held the failure of the trial judge to admonish appellant of the consequences of violating his deferred adjudication probation did not retroactively render appellant’s plea involuntary. Joyner v. State, 882 S.W.2d 59, 61 (Tex.App.—Houston [14th Dist.] 1994). This Court, utilizing the same rationale, reached the same result in Ray v. State, 919 S.W.2d 125 (Tex.Cr.App.1996), and *235on the strength of Ray affirms the judgment of the Court of Appeals.

I write separately to note that the § 5(a) admonishment requirement is insulated from appellate review because under § 5(b) the hearing on a motion to adjudicate guilt is limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge and no appeal may be taken from this determination. Consequently, our holding in Ray had the effect of judicially repealing the admonishment requirement of art. 42.12, § 5(a). Such a result is contrary to our normal approach to statutory interpretation; we normally interpret the statute in order to give effect to the statutory text. See, Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). Therefore, while the trial judge is compelled to comply with art. 42.12, § 5(a), there is no means to rectify a failure to do so, which as this case indicates is a common occurrence. See also, Ray, supra; Graham v. State, 873 S.W.2d 709 (Tex.App.—Eastland 1994, no pet.); and, Marin v. State, 901 S.W.2d 542 (Tex.App.—El Paso, 1995).

Under the doctrine of stare decisis our holding in Ray is binding. In light of Ray, the Legislature should either repeal the § 5(a) admonishment requirement or provide a specific remedy for failure to provide the admonishment. With these comments, I join the majority opinion.

MANSFIELD, J., joins this opinion.