(concurring).
I would disassociate myself from any inference in the majority’s opinion that an insufficient admonishment as to the consequences of a plea under Article 26.13, Vernon’s Ann.C.C.P., may be harmless error if the omission could not have misled the accused to his detriment.
“This Court has consistently held that the provisions of Article 26.13, Vernon’s Ann.C.C.P., are mandatory and the prerequisites therein set out must be complied with as a condition precedent to the *930validity of a plea of guilty and that such question may be raised at any time.” (cases cited omitted) Ex parte Battenfield, 466 S.W.2d 569 (Tex.Cr.App.1971).
The “consequences of the plea,” as used in the statute, has been interpreted as meaning the punishment provided by law for the offense and the punishment which could be inflicted under his plea. Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956).
Only recently in Loudd v. State, 474 S.W.2d 200 (Tex.Cr.App.1971), this court said that the requirement that a court advise a defendant as to the range of punishment is mandatory and failure to do so requires reversal.
Further, it is clear that the statutory admonishment must be made manifest of record and the admonishment cannot be supplied by inference, intendment, or presumption. Ex parte Battenfield, supra.
A recital in the judgment substantially in the language of the statute presumptively establishes that the statutory duty was performed and renders the judgment valid unless the contrary is shown by the record. McCoy v. State, 169 Tex.Cr.R. 620, 336 S.W.2d 945 (1960); Ex parte Battenfield, supra.
The judges of this court have not always agreed as to what constitutes a showing to the contrary. See Ex parte Battenfield. supra, and cases there cited.
In the instant case, the formal judgment reflects that the appellant was duly admonished of the consequences of his plea. Does the record reflect the contrary ?
When arraigned, the appellant entered a plea of not guilty. At his trial before a jury, he entered a plea of not guilty. The voir dire examination of the jury panel is not in the record before us. After the testimony of two witnesses for the State, the' appellant withdrew his earlier plea and entered a guilty plea before the court, waiving trial by jury.
The docket sheet, consistent with the judgment, reflects that at this point, the court duly admonished the appellant of the consequences of his plea. The transcription of the court reporter’s notes reflects that the court admonished the appellant that the punishment for robbery by assault was for “. . . any term in the penitentiary not less than five years.”
Article 1408, Vernon’s Ann.P.C., provides the penalty for such offense to be “. . . confinement in the penitentiary for life, or for a term of not less than five years; . . .” Such statute also provides that when a firearm or other deadly weapon is used or exhibited in the commission of the offense of robbery, “. the punishment shall be death or by confinement in the penitentiary for any term not less than five years.” Thus, life is a possible penalty for robbery by assault, but not robbery by assault with a firearm or other deadly weapon. This frequently caused confusion. Just why the Legisla-, ture made such a distinction is not clear.
Further, it is noted that a life sentence is not includable within a statute providing for punishment “for any term of years without prescribing a maximum penalty.” See Ex parte Davis, 412 S.W.2d 46 (Tex.Cr.App.1967); Ex parte Balas, 412 S.W.2d 53 (Tex.Cr.App.1967).
In the instant case, I would hold that the presumption established by the recital in the judgment was not sufficiently overcome by a showing in the record to the contrary as to call for reversal when given the particular circumstances presented.
Trial judges would be well advised to keep a proper list of penalties on the bench so as to avoid any error in admonishment.
I fully agree that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), has no application to a judicial confession made in open court and the judicial confession in the instant case, standing alone, was sufficient to satisfy the requirements of the statute.
For the reasons stated, I concur.