Ex Parte Williams

704 S.W.2d 773, 1986 Tex. Crim. App. LEXIS 752

Opinions

OPINION

CAMPBELL, Judge.

This is a post-conviction writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Applicant pled guilty to aggravated robbery. The trial court assessed punishment at ten years confinement in the Texas Department of Corrections, probated. The trial court later discovered it could not impose probation and reassessed punishment at ten years confinement in the Texas Department of Corrections. In two contentions, applicant seeks release from custody and alleges that his plea of guilty was not knowingly and voluntarily entered because: 1) his attorney failed to inform him of the proper range of punishment, and 2) the trial court did not properly admonish him as to the range of punishment. See Art. 26.13(a)(1), V.A.C.C.P. We will address applicant’s second ground of relief relating to the trial court’s admonishments on punishment and grant relief.

Applicant was indicted for the felony offenses of capital murder, attempted capital murder and aggravated robbery. Trial was set for August 17, 1981. On that day, plea negotiations were initiated and a conference was held in the judge’s chambers. Although the State refused to make a specific recommendation, the trial court agreed to place applicant on ten years probation for the offense of aggravated robbery. Applicant then filed an application for probation. Prior to accepting applicant’s plea of guilty, the trial court admonished applicant of the following regarding the range of punishment:

THE COURT: You understand the penalty for the offense that you are pleading guilty may be incarceration, locked up, in the Texas Department of Corrections, the penitentiary, for a period of not less than five years nor more than 99 years or for life, plus the payment of a fine not to exceed $10,000.

THE DEFENDANT: Yes, sir.

THE COURT: Knowing that, you still persist that you want to plead guilty?

THE DEFENDANT: Yes, sir.

The trial court continued by admonishing applicant of the various constitutional rights he would be waiving. The trial court then questioned applicant as to his understanding of the plea agreement:

THE COURT: Now, you have filed with this Court — or has he [your defense attorney] told you that there is no agreement on the part of the District Attorney to make a recommendation in this case, except that he has explained to the court the circumstances surrounding the commission of the offense and the evidence that’s available to both of you and to the District Attorney in this case, and the Court, based upon that conversation, that information between you and your attorney and the District Attorney, has agreed upon your plea of guilty that the Court is going to give you a sentence of ten years in the Texas Department of Corrections probated for a period of ten years.1 Do you understand that?

THE DEFENDANT: Yes, sir.

The trial court accepted applicant’s plea of guilty and granted him ten years probation. However, on July 13, 1984, almost three years later, in a subsequent hearing to revoke applicant’s probation, the trial court discovered it could not grant probation for the offense of aggravated robbery. See Art. 42.12, Sec. 3f(a)(l)(D), V.A.C.C.P. The trial court reassessed punishment at ten years confinement in the Texas Department of Corrections. Applicant filed a motion for new trial. The trial court rejected applicant’s request. Applicant appealed, but the Court of Appeals dismissed the appeal for want of jurisdiction. Williams v. State, 692 S.W.2d 545 (Tex.App.-Houston [14th] 1985).

Applicant argues that his plea was not voluntary or knowing because the trial court inaccurately admonished him of the range of punishment available for the offense of aggravated robbery by informing him that probation could and would be granted. We now consider that claim.

Before accepting any plea of guilty or nolo contendere from a defendant, a trial court is required to admonish the defendant of “the range of punishment attached to the offense.” Art. 26.13(a)(1), supra. The mandatory language of Art. 26.13(a), supra, creates a duty on the part of the trial court to inform a defendant accurately of the range of punishment prior to a defendant’s plea of guilty or nolo contendere so that a free and voluntary plea is assured. This duty is completely separate from defense counsel’s duty to provide effective assistance to the defendant. Ex parte Battenfield, 466 S.W.2d 569, 572 (Tex.Cr.App.1971).

This Court has long held that the “range of punishment” that must be included in an admonishment under Article 26.-13(a)(1), supra, does not include probation. Therefore, the general rule is that there is no mandatory duty for a trial judge to admonish a defendant as to his eligibility for probation. Shields v. State, 608 S.W.2d 924, 927 (Tex.Cr.App.1980); Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1968). In some circumstances, however, a trial court may impose a duty upon itself under Article 26.13(a)(1), supra, to admonish a defendant accurately as to the availability of probation. Harrison v. State, 688 S.W.2d 497 (Tex.Cr.App.1985). See also Ramirez v. State, 655 S.W.2d 319 (Tex. App.-Corpus Christi 1983), no pet.

In Harrison, supra, a defendant pled guilty to aggravated robbery following plea negotiations with the State. The State made no recommendation as to punishment. The trial court assessed punishment at ten years and one day confinement in the Texas Department of Corrections. The Houston (1st) Court of Appeals held that the trial court failed to admonish the defendant accurately as to his ineligibility for probation.² We acknowledged that the trial court committed error when it misstated the availability of probation. However, we held that the trial court’s inaccurate statement on the availability of probation was not reversible error because Article 26.-13(c), V.A.C.C.P., provides that “substantial compliance by the court [with the admonishment requirement] is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.” (emphasis in original) Id., at 499.

The defendant in Harrison, supra, offered no evidence that he was expecting probation or was misled by the court’s erroneous admonishment. The defendant “utterly failed to show any reliance on the trial court’s misstatement of the availability of probation.” Id., at 499. Therefore, the defendant failed to meet the detrimental reliance requirement of Art. 26.13(c), supra. We held that defendant’s plea was substantially in compliance with Art. 26.-13(a)(1) and voluntary.

In Ramirez, supra, a defendant pled guilty to aggravated robbery. The trial court assessed punishment at five years confinement in the Texas Department of Corrections. The Corpus Christi Court of Appeals held that the trial court failed to accurately admonish the defendant as to the availability of probation.³ The Court of Appeals reversed the conviction because the defendant had affirmatively sought probation and had pled guilty in anticipation that he would receive probation.

We noted in Harrison, supra at 499, that “the holding in Ramirez may be correct, insofar as it is error to advise a defendant that he may receive probation when he is statutorily ineligible....” We also noted that such error would not make a plea involuntary unless a defendant could also show, pursuant to Art. 26.13(c), supra, that he was unaware of the consequences of his plea and was misled or harmed.

In Ramirez, supra at 321, the Court of Appeals found that the defendant affirmatively sought probation and pled guilty in anticipation that he would receive probation. This finding provided the harm necessary for reversal under Article 26.13(c), supra.⁴

It is critical to note that in both Harrison, supra and Ramirez, supra, the trial courts did not initially have a duty under Art. 26.13(a)(1), supra, to admonish the defendants on the availability of probation.⁵ See Shields, supra; Wilson, supra. However, the trial courts, in both cases, volunteered admonishments which included information as to the availability of probation. Under those circumstances, the trial courts became obligated, pursuant to Article 26.13(a)(1), supra, to provide the defendants with accurate information concerning the range of punishment as it related to probation so that the defendants’ pleas would be voluntary and knowing. Otherwise, a trial court would be free to inaccurately admonish on probation, thus misleading a defendant, simply because there was no initial duty to admonish.

It is readily apparent from our holding in Harrison, supra, coupled with the language of Arts. 26.13(a)(1) and (c), supra, that a plea is involuntarily induced: 1) when a defendant shows that the trial court volunteered an admonishment that included information on the availability of probation, thereby creating an affirmative duty on the part of the trial judge to provide accurate information on the availability of probation, 2) when a defendant shows that the trial court provided him with inaccurate information on the availability of probation, thereby leaving the defendant unaware of the consequences of his plea, and 3) when a defendant makes an objective showing that he was misled or harmed by the inaccurate admonishment.

1. Did the trial court volunteer an admonishment that included information on the availability of probation, thus creating an affirmative duty to provide accurate information on the availability of probation?

In the instant case, the trial court, at first, limited his admonition on the range of punishment to a strict recitation of the term of years and amount of fine provided for aggravated robbery. However, the trial court continued by informing the applicant that he would be receiving probation pursuant to the trial court’s earlier agreement.⁶ We find that this additional statement effectively constituted a voluntary admonishment by the trial court on the availability of probation, which obligated the trial court, under Art. 26.13(a)(1), supra, to provide accurate information concerning whether probation was within the range of punishment allowed by law for aggravated robbery.

2. Did the trial court provide applicant with inaccurate information on the availability of probation, thus leaving applicant unaware of the consequences of his plea?

In the instant case, applicant pled guilty to aggravated robbery. Article 42.12, Sec. 3f(a)(l)(D), supra, specifically eliminates probation as a punishment consideration if the offense of aggravated robbery is involved and the trial court assesses punishment. However, the trial court informed applicant that it would grant him probation, thus creating the understanding that probation was not only legally possible but imminent. Under these circumstances, we find that the trial court’s admonishment, which implied that probation was within the range of punishment available for aggravated robbery, was significantly inaccurate.

The State makes no claim that applicant knew that probation was unavailable despite the trial court’s inaccurate admonishment. Applicant testified that he was at all times unaware of his ineligibility for probation. Applicant’s attorney was equally unaware. Apparently, the State also was unaware. Thus, the trial court’s volunteered information on the availability of probation kept applicant ignorant of an important consequence of his plea.⁷ Under these circumstances, we find that the trial court provided applicant with inaccurate information as to the availability of probation, thus leaving applicant unaware of the consequences of his plea.

3.Has applicant made an objective showing that he was misled or harmed by the inaccurate admonishment?

In the instant case, applicant actively sought probation during plea negotiations. The trial judge recognized this affirmative representation when he agreed to grant applicant probation. Further, applicant filed a motion for probation prior to offering his plea of guilty. The trial court acknowledged applicant’s request for probation by including the agreement to grant probation in his admonishments. Finally, in the hearing on applicant’s motion for new trial, applicant testified that he fully expected to receive probation. Applicant’s attorney acknowledged this same understanding. The State has not denied this understanding.

Based on this anticipation of probation, applicant pled guilty. The trial court did, in fact, originally grant applicant probation. This action temporarily satisfied applicant’s expectation. However, almost three years later, the trial court reassessed punishment at ten years confinement in prison.⁸

Prior to entering plea negotiations, applicant was willing to proceed to trial. By pleading guilty, he waived his valuable rights of trial by jury, confrontation of witnesses and the right against self-incrimination, with the expectation that he would receive probation; ultimately, he received a sentence of ten years confinement in prison. Under these circumstances, we find that applicant has made an abundant objective showing that he was both misled and harmed by the trial court’s inaccurate admonishment on the range of punishment.

The relief sought is granted. Applicant is remanded to the custody of the sheriff of Harris County to answer the indictment in Cause No. 325,658. The Clerk of the Court of Criminal Appeals will mail a copy of this opinion to the Texas Department of Corrections.

WHITE, J., concurs.

1 . All emphasis is supplied by the author of this opinion unless otherwise indicated.

2 . After informing the defendant that the trial court could sentence defendant to "anything allowed by law,” the trial court made the following admonishment:

“THE COURT: You may or may not be accorded probation. That would rest solely in the discretion of the court.” Harrison, supra at 498.

Since the defendant was charged with aggravated robbery, the trial court did not have the discretion to consider probation. See Art. 42.-12, Sec. 3f(a)(l)(D), supra. Therefore, the trial court clearly volunteered an inaccurate admonishment regarding the availability of probation.

3 .In Ramirez, supra at 320, the trial court was aware of defendant’s request for probation and made the following admonishment:

"THE COURT: The range of punishment for this offense is by a term of life or not less than five nor more than ninety-nine years in the Texas Department of Corrections and by a fine not to exceed $ 10,000. In addition thereto, if you have made application for probation, you should be advised that your application may or may not be granted. Do you understand that?

THE DEFENDANT: Yes, sir.”

The trial court could not have granted probation. See 42.12, Sec. 3f(a)(l)(D), supra. Therefore, the volunteered admonishment on probation was inaccurate.

4 . We recognize that the Court of Appeals in Ramirez, supra at 322, stated in its conclusion that there was “no compliance" with Art. 26.13, supra, thus implying that an inaccurate admonishment on probation will always result in an involuntary plea. We reject this claim. A plea of guilty or nolo contendere which results from a volunteered and inaccurate admonishment on probation, will be involuntary under Art. 26.13, supra, only if a defendant has been left unaware of the consequences of his plea and has been misled or harmed.

5 . We continue to note that the better practice would be for the cautious trial court to provide an accurate admonishment on the availability of probation, despite the initial absence of any duty to do so. See Harrison, supra at 500, n. 2.

6 . A trial judge should not participate in plea discussions or negotiations until an agreement has been reached between a defendant and the State. See Ex parte Shuflin, 528 S.W.2d 610, 617, n. 1 (Tex.Cr.App.1975) and references to ABA Standards and Code of Judicial Conduct of the Judiciary of State of Texas quoted therein.

7 . During the hearing on the motion for new trial, the State argued that probation was possible because the trial court could have granted applicant deferred adjudication. Such an argument requires pure speculation as to the trial court’s and defendant’s intentions and is contradicted by the clear testimony in the record. See Harrison, supra at 499. Cf. West v. State, 702 S.W.2d 629 (Tex.Cr.App.1986).

8 . The fact that the trial court altered the sentence three years later is irrelevant to today's opinion. If the trial court had discovered that the applicant was ineligible for probation immediately following acceptance of applicant’s plea of guilty and then reassessed punishment at ten years confinement, the same result would still follow. It is the trial court’s volunteered misinformation on the availability of probation prior to acceptance of the guilty plea that makes applicant’s plea involuntary and requires this Court to grant applicant relief.