Gonzales v. State

746 S.W.2d 902, 1988 Tex. App. LEXIS 414, 1988 WL 13516
CourtCourt of Appeals of Texas
DecidedFebruary 25, 1988
Docket13-87-146-CR
StatusPublished
Cited by19 cases

This text of 746 S.W.2d 902 (Gonzales v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzales v. State, 746 S.W.2d 902, 1988 Tex. App. LEXIS 414, 1988 WL 13516 (Tex. Ct. App. 1988).

Opinions

OPINION

NYE, Chief Justice.

This is an appeal from a plea of guilty to attempted burglary of a habitation. Punishment, enhanced by two prior felony convictions, was assessed at twenty-five years. By three points of error, appellant complains that the trial court failed to properly admonish him of the consequences of his plea, thereby making it involuntary and depriving him of his constitutional right to due process of law. Appellant specifically contends that the trial court’s admonishment on the range of punishment was insufficient. We disagree and affirm the judgment of the trial court.

Appellant was charged by indictment with attempted burglary of a habitation. The indictment also alleged that appellant had two previous felony convictions. Appellant pled guilty to the primary offense and “not true” to the enhancement portion of the indictment. Trial was before the court.

Before any admonishments were given, the following transpired:

THE COURT: All right. How do you plead to the indictment, guilty or not guilty?
THE DEFENDANT: Guilty, Your Hon- or.
THE COURT: Is that guilty to—
THE DEFENDANT: To attempted burglary.
THE COURT: —the first count, attempted burglary, and not guilty as to the remaining—
THE DEFENDANT: Yes, sir.
THE COURT: —which contains, I think, reference to two prior convictions?
MR. GONZALEZ (defense counsel): Right. We are entering not true to those enhancements.

The trial judge then admonished appellant on the range of punishment applicable to the offense of attempted burglary of a habitation in the following manner:

THE COURT: All right. Now, one charged with this offense, that is, attempted burglary, may be punished by confinement. This is — this is a second degree, is it?
[DEFENDANT’S ATTORNEY]: Yes, sir.
THE COURT: All right. You may be confined in the Texas Department of Corrections for a period not less than 2, nor more than 20 years, and fined up to $10,000. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And based on your plea alone, to this charge, that could be the sentence of the Court, 20 years in the penitentiary. Do you understand?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Or up to that amount.... All right. Now, after the explanations concerning the possibility of punishment, do you still wish to plead guilty?
THE DEFENDANT: Yes, Your Honor.

No admonishment on the range of punishment applicable for a repeat offender or habitual felony offender was given. The court accepted the plea of guilty and found appellant guilty.

[904]*904The State then proved that appellant had previously been finally convicted of two felony offenses. Appellant did not present any evidence to rebut the enhancement allegations. The trial court found the enhancement portion of the indictment to be true and adjudged appellant to be a habitual felony offender. Pursuant to Tex. Penal Code Ann. § 12.42 (Vernon Supp.1987), a habitual felony offender may be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than ninety-nine years or less than twenty-five years.

Tex.Code Crim.Proc.Ann. art. 26.13 (Vernon Pamph.1987) requires a trial court to admonish a defendant on the range of punishment attached to an offense before accepting a plea of guilty. The admonishment must come from the trial court, and it is insufficient if the admonishment comes from counsel. Jackson v. State, 587 S.W. 2d 398 (Tex.Crim.App.1979); Murray v. State, 561 S.W.2d 821, 822 (Tex.Crim.App.1977).

The purpose of this admonishment is to insure that the defendant enters his plea with full knowledge of its consequences. An affirmative showing of such knowledge is constitutionally required. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Whitten v. State, 587 S.W.2d 156, 158 (Tex.Crim.App. 1979). “Consequences” of a plea has been interpreted to mean the punishment provided by law for the offense and which can be inflicted under the plea. Eubanks v. State, 599 S.W.2d 815, 816 (Tex.Crim.App.1980).

When a defendant pleads guilty to an indictment that alleges prior convictions for enhancement purposes, the accused should be admonished of the full range of punishment available through enhancement. Taylor v. State, 591 S.W.2d 826, 828. (Tex.Crim.App.1979). See also, Ricondo v. State, 634 S.W.2d 837 (Tex.Crim.App.1981). In the instant case, a full admonishment would have informed appellant that the primary offense was punishable by confinement for not less than two or more than twenty years with a possible fine of ten thousand dollars. Tex.Penal Code Ann. § 30.02 (Vernon 1974). In addition, the appellant should have been admonished that in the event the State proved one prior felony conviction, the punishment range would then be five to ninety-nine years or life, and if two prior convictions were proved, the range would then be twenty-five to ninety-nine years or life. Tex.Penal Code Ann. § 12.42 (Vernon Supp.1987).

When a trial court completely fails to admonish a defendant, such failure constitutes reversible error without regard to whether the defendant was harmed. But where the record indicates that the defendant received an admonishment with respect to punishment, although not a complete one, there is a prima facie showing that the plea of guilty was knowingly and voluntarily made. The burden shifts to the defendant to show that he entered the plea without understanding the consequences of his action and was “misled or harmed by the admonishment of the Court.” Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App.1984); Ex parte McAtee, 599 S.W.2d 335, 336 (Tex.Crim.App.1980); article 26.13.

This is not a case, however, where the trial court completely failed to admonish the accused on the range of punishment. Appellant pled guilty only to the primary offense. He pled “not true” to the enhancement allegations and placed the burden upon the State to introduce sufficient evidence to support those allegations.

In addition, the record as it was developed, fails to show that appellant was harmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roger Dale Gammons v. State
Court of Criminal Appeals of Texas, 2015
Geneva Doris Vasquez v. State
Court of Appeals of Texas, 2015
Anthony Ray Davison v. State of Texas
377 S.W.3d 897 (Court of Appeals of Texas, 2012)
Luckett v. State
394 S.W.3d 577 (Court of Appeals of Texas, 2012)
Seagraves v. State
342 S.W.3d 176 (Court of Appeals of Texas, 2011)
Tommie Joe Seagraves v. State
Court of Appeals of Texas, 2011
Billy R. Belgard v. State
Court of Appeals of Texas, 2010
Magic v. State
217 S.W.3d 66 (Court of Appeals of Texas, 2006)
Michael Anthony Rhodes v. State
Court of Appeals of Texas, 2003
Elmer Ray Jordan, Jr. v. State
Court of Appeals of Texas, 2003
Charles Coleman Morgan v. State of Texas
Court of Appeals of Texas, 2002
Gomez v. State
921 S.W.2d 329 (Court of Appeals of Texas, 1996)
Grays v. State
888 S.W.2d 876 (Court of Appeals of Texas, 1994)
Cree v. State
814 S.W.2d 74 (Court of Appeals of Texas, 1991)
Gonzales v. State
746 S.W.2d 902 (Court of Appeals of Texas, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
746 S.W.2d 902, 1988 Tex. App. LEXIS 414, 1988 WL 13516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-state-texapp-1988.