Cameron v. State

508 S.W.2d 618, 1974 Tex. Crim. App. LEXIS 1414

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 1974
• Docket: 48150
• Status: Published

Opinions

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery by firearms where a plea of guilty was entered before the jury. Punishment was assessed at five years.

In his sole contention, appellant urges that the court erred in not properly admonishing him upon his plea of guilty as to range of punishment as required by Article 26.13, Vernon’s Ann.C.C.P.

The record reflects that the court admonished appellant as to range of punishment as follows:

“The Court: Mr. Cameron, the court must admonish you of the consequences of such a plea before the Court can accept the plea of guilty. You understand that if you are found guilty in this matter that you will be subject to a punishment of five years to life in the Texas Department of Corrections ?

“The Defendant: Yes, I do.”

Article 1408, Vernon’s Ann.P.C., provides that when a firearm or other deadly weapon is used in the commission of a robbery the punishment shall be “death or by confinement in the penitentiary for any term not less than five years.”

Appellant argues that he could have conceivably received a thousand year sentence, since the court correctly instructed the jury in his charge to assess punishment “for any term not less than five years.”

The almost identical question was before this court in the recent case of Jorden v. State, Tex.Cr.App., 500 S.W.2d 117, where it was contended the trial court incorrectly admonished defendant in a murder case as to the range of punishment upon a plea of guilty. In Jorden, the trial court admonished appellant that punishment for such offense was “ . . . confinement in the Texas Department of Corrections for not less than two years nor more than life”; whereas the statutory range under Article 1257, V.A.P.C., is “ . . . life or for any term of years not less than two.” This court divided in Jorden with the majority concluding that the omission in the admonishment could not have misled him to his detriment. In a footnote the majority stated an accused cannot be assessed a penalty greater than “life” in prison.

In the instant case, we conclude that the omission in the admonishment could not have misled appellant to his detriment. Jorden v. State, supra.

No reversible error being shown, the judgment is affirmed.

Opinion approved by the Court.

ONION, P. J., and ROBERTS, J., dissent.