Guster v. State

522 S.W.2d 494, 1975 Tex. Crim. App. LEXIS 942

Opinions

OPINION

ODOM, Judge.

These are appeals from convictions for burglary with intent to commit theft and felony theft. The appellant pled guilty and the court sentenced him to seven years for each offense.

Appellant’s only ground of error is that the trial court failed to comply with Article 26.13, Vernon’s Ann.C.C.P., when accepting his pleas of guilty.¹ There is no showing that appellant was prejudiced or injured by the failure of the trial court to fully comply with that article. Cf. Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479 (1975). Accordingly, this contention could not be raised on collateral attack. Taylor, supra. Since it also was not raised by objection to the court below, either at the taking of the pleas or by motion for new-trial, it likewise would not be considered by this Court on its own motion. Williams v. State, Tex.Cr.App., 522 S.W.2d 488 (this day decided).

We now extend the rule of Taylor and Williams to the situation before us: where there is no showing that a defendant was prejudiced or injured by the failure of the trial court to fully comply with Article 26.-13, supra, and where no objection is made to such failure at the time the plea is accepted or by motion for new trial, that failure to fully comply will not constitute reversible error on appeal. This does not alter the rule requiring reversal where there is a showing of prejudice or injury. The demarcation between such cases requiring reversal and those not requiring reversal is best left to a case by case determination. This case, however, clearly falls within the extended rule of Taylor and Williams. All cases in conflict with our holding herein are overruled.²

Finding no reversible error, the judgments are affirmed.

1 . The record reflects that while the court inquired in each case as to whether “any threat” had been made or whether “any promise” had been given to cause the appellant to enter his guilty pleas, there was no inquiry with regard to “fear” and “persuasion.”

2 . Although not exhaustive, the cases overruled include Wade v. State, Tex.Cr.App., 511 S.W.2d 7; Harris v. State, Tex.Cr.App., 500 S.W.2d 126; Prudhomme v. State, Tex.Cr.App., 495 S.W.2d 941; Martinez v. State, Tex.Cr.App., 494 S.W.2d 545; Crocker v. State, Tex.Cr.App., 485 S.W.2d 566; and Rogers v. State, Tex.Cr.App., 479 S.W.2d 42.