Ex Parte Taylor

522 S.W.2d 479, 1975 Tex. Crim. App. LEXIS 842

• Court: Court of Criminal Appeals of Texas
• Decided: February 5, 1975
• Docket: 49443
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P. Taylor seeks relief from a conviction for murder. He contends that he was not properly admonished under the then Article 501, V.A.C.C.P. [now Article 26.13, V.A.C.C.P.], as to the consequences of his plea of guilty in that the trial court informed him that the punishment for murder was for any term of years not less than two nor more than life and did not mention the penalty of death.

In 1964, Taylor was convicted upon his plea of guilty before a jury which assessed his punishment at life. He did not appeal.

In 480 S.W.2d 692 (Tex.Cr.App.1972), this Court denied him relief upon an application for a writ of habeas corpus and held that the collateral attack upon the sufficiency of the evidence could not be maintained. The sufficiency of the admonishment was not discussed. He had been denied relief on other occasions.

From the record of the prior conviction it appears that he is correct in the statement that the court did not inform him of the full range of punishment.

We hold that the relief sought is denied. Contrary to earlier decisions, we now hold that in a collateral attack upon a plea of guilty there must be a showing that a defendant was prejudiced or injured for the failure of the trial court to fully comply with Article 26.13, supra.

The failure to inform an accused of the correct range of punishment has presented difficult problems or has at least caused a divided Court in recent years. See Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974); Jorden v. State, 500 S.W.2d 117 (Tex.Cr.App.1973); Valdez v. State, 479 S.W.2d 927 (Tex.Cr.App. 1972), and Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).

The provisions of Artidfe 26.13, V.A.C. C.P., and its predecessor, Article 501, V. A.C.C.P. (1925), have always been mandatory. See Saunders v. State, 10 Tex.App. 336 (1881); Wallace v. State, 10 Tex.App. 407 (1881); Evers v. State, 32 Tex.Cr.R. 283, 22 S.W. 1019 (1893); and Coleman v. State, 35 Tex.Cr.R. 404, 33 S.W. 1083 (1896).

Our holding is based in part upon the reasoning in Ex parte Meadows, 418 S.W. 2d 666 (Tex.Cr.App.1967). Prior to that decision, this Court had held that collateral attacks for the failure to comply with Article 494, V.A.C.C.P. [now Article 26.04(b)], could be maintained. That statute manda-torily provided for appointment of counsel and “counsel so appointed shall have at least ten (10) days to prepare for trial, unless such time be waived in writing by said attorney.” In overruling Ex parte Austin, 410 S.W.2d 439 (Tex.Cr.App.1967), and other cases, this Court wrote:

“It does not follow that the failure of appointed counsel to waive in writing the 10 days allowed him to prepare for trial is sufficient grounds for post conviction relief, if'it appears that such failure did not result in injury to the defendant such as would deprive him of a fair trial or deny him a constitutional right.

“There are many statutes the violation of which, if properly raised, would be ground for a new trial or reversal on appeal but would not be ground for relief in a post conviction proceeding.”

All of the cases contrary to this holding are overruled.¹

By our holding today, we do not in any way diminish the requirement of complying with Article 26.13. Pleas of guilty must still be knowingly and voluntarily entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Trial courts, in addition to the statutory requirements, could follow the recommendations of the American Bar Association Standards for Criminal Justice, Pleas of Guilty, Approved Draft, 1968. See Erdelyan v. State, 481 S.W.2d 843 (Tex.Cr.App.1972).

The relief sought is denied.²

1 . A list of the cases with language or implications to the contrary includes, but is not limited to, the following: May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Williams, 165 Tex.Cr.R. 130, 303 S.W.2d 403 (1957); Ex parte Muekelroy, 171 Tex.Cr.R. 616, 352 S.W.2d 835 (1962); Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); Clark v. State, 424 S.W.2d 445 (Tex.Cr.App.1968); Ex parte Humphrey, 456 S.W.2d 118 (Tex.Cr.App.1970); Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970); Crawford v. State, 466 S.W.2d 319 (Tex.Cr.App.1971); Ex parte Battenfield, 466 S.W.2d 569 (Tex. Cr.App.1971); Rogers v. State, 479 S.W.2d 42 (Tex.Cr.App.1972); Ex parte Marshall, 479 S.W.2d 921 (Tex.Cr.App.1972); Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972); Ex parte Jordan, 490 S.W.2d 585 (Tex.Cr.App.1973); Ex parte Robinson, 494 S.W.2d 538 (Tex.Cr.App.1973); Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973); Heathcock v. State, 494 S.W.2d 570 (Tex.Cr.App.1973); Ex parte Harvey, 495 S.W.2d 229 (Tex.Cr.App.1973); Ex parte Williams, 499 S.W.2d 172 (Tex.Cr.App.1973); Ex parte Johnson, 499 S.W.2d 180 (Tex.Cr.App.1973); Ex parte Williams, 500 S.W.2d 127 (Tex.Cr.App.1973); Reed v. State, 500 S.W.2d 137 (Tex.Cr.App.1973); Perkins v. State, 504 S.W.2d 458 (Tex.Cr.App.1974); Ex parte Scott, 505 S.W.2d 602 (Tex.Cr.App.1974); Ex parte Dickerson, 508 S.W.2d 387 (Tex.Cr.App.1974); and Ex parte Watson, 508 S.W.2d 399 (Tex.Cr.App.1974).

2 . Our holding does not apply to cases on direct appeal.