Khan Phi Nguyen v. State

859 S.W.2d 437, 1993 WL 207843
CourtCourt of Appeals of Texas
DecidedOctober 20, 1993
Docket01-92-00868-CR
StatusPublished
Cited by6 cases

This text of 859 S.W.2d 437 (Khan Phi Nguyen 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
Khan Phi Nguyen v. State, 859 S.W.2d 437, 1993 WL 207843 (Tex. Ct. App. 1993).

Opinions

OPINION

COHEN, Justice.

Appellant waived his right to a jury trial, pled guilty to aggravated robbery, and the trial judge assessed punishment at 18 years in prison. We reverse.

In his first point of error, appellant contends the trial judge erred in failing to admonish appellant as to the range of punishment for aggravated robbery, as required by Tex.Code Crim.P.Ann. art. 26.-13(a)(1) (Vernon 1989).

Article 26.13(a)(1) provides: “Prior to accepting a plea of guilty or nolo contendere, the court shall admonish the defendant of: (1) the range of the punishment attached to the offense_” Tex.Code CRIm.P.Ann. art. 26.13(a)(1) (Vernon 1989).

Here, the following occurred:

COURT: This is an indictment. You have the accusation against you. Do you waive the reading of the indictment?
DEFENDANT: Yes, sir.
COURT: All right. The Court will summarize it. They say in Harris County, on April 16th, 1991, that you committed the offense of theft of property with intent to subvert it to your own personal use. Were you born in the United States?
DEFENDANT: No, sir.
COURT: Are you an American citizen?
DEFENDANT: No, sir.
COURT: What?
DEFENDANT: No, sir.
COURT: Well, I must tell you that if they find you guilty there is a possibility that you can be deported and that you, if you were getting your citizenship, that might terminate that. Do you understand that?
DEFENDANT: Yes, sir.
COURT: Are you ready to proceed on this plea?
DEFENDANT: Yes, sir.
COURT: Alright. The State may proceed.
[438]*438PROSECUTOR: Your honor, may I examine the witness.
COURT: Yes, sir.
PROSECUTOR: You are here today on the charge of aggravated robbery. The sentence for aggravated robbery, it is a first degree felony, and the sentence is from a minimum of five years and a maximum of 99 years or life and up to a twenty-thousand-dollar fine. Do you realize this?
DEFENDANT: Yes, sir.

(Emphasis added.)

The judge said nothing about the range of punishment. Moreover, he erroneously told appellant that he was accused of theft, rather than aggravated robbery.

In Murray v. State, 561 S.W.2d 821 (Tex.Crim.App.1979), the court of criminal appeals held:

[Article 26.13(a)] provides that it is the trial court which must admonish the accused of the range of punishment attached to the offense. The statute is mandatory: it does not allow the defense attorney, or the prosecutor, or the clerk of the court, or anyone but the judge himself, to admonish the accused of the range of punishment.

561 S.W.2d at 822. The court reiterated the rule in Whitten v. State, 587 S.W.2d 156 (Tex.Crim.App.1979) (op. on reh’g). In Whitten, the trial judge omitted any admonishment concerning the range of punishment, but the State argued the omission was harmless and the statute was substantially complied with because the prosecutor mentioned the proper range of punishment during voir dire. Id. at 158. The court of criminal appeals disagreed, stating:

The trial court, not the prosecutor, must satisfy itself as to the propriety of guilty pleas and defendants should properly look to the trial court, not the prosecutor, for admonishments on the law....
In this case, the trial court did not participate in the admonishment and the admonishment was not directed to the defendant. There was consequently no substantial compliance with the provisions of Art. 26.13.

Id. at 159.

Here, the State contends the fact the words were not spoken by the trial judge does not preclude a finding that the trial court was responsible for giving the admonishment. The trial judge here, the State argues, implicitly adopted the prosecutor’s admonishment of appellant. For support, the State relies on Taylor v. State, 591 S.W.2d 826, 830 (Tex.Crim.App.1979) (op. on reh’g), and Goodie v. State, 737 S.W.2d 37, 38-39 (Tex.App.—Houston [14th Dist.] 1987), affirmed, 745 S.W.2d 379 (Tex.Crim.App.1988).

In Taylor, the trial judge, during his admonishment of the defendant, asked the prosecutor for the correct range of punishment. 591 S.W.2d at 829. The prosecutor recited the range and the judge then asked the defendant if he understood. Id. The court wrote:

While the style used is no model form to be condoned or copied, we nevertheless find the trial court was being responsible for giving the admonishment and was satisfying itself as to the propriety of appellant’s plea.

Id. at 830.

In Goodie, the prosecutor read the admonishments to the defendant under the instruction of the trial court. 737 S.W.2d at 38-39. Because the judge instructed the prosecutor to admonish appellant, and because the admonishment was directed toward appellant, the court of appeals found substantial compliance with article 26.13, as required by Whitten and Taylor. 737 S.W.2d at 39. The court of criminal appeals refused to grant discretionary review, but stated:

Our refusal to grant the petition for discretionary review should not be construed as an approval of a practice of having someone other than the trial judge deliver the admonishments to the defendant.... With this disclaimer, we refuse appellant’s petition for discretionary review.

Goodie v. State, 745 S.W.2d 379 (Tex.Crim.App.1988).

[439]*439This case differs from Taylor and Goodie. In those cases, the courts found substantial compliance with article 26.13 only because the prosecutor admonished the defendant at the instruction of the judge. Here, nothing in the record indicates the judge instructed the prosecutor to give the admonishment. Rather, this case typifies a practice the court of criminal appeals refused to sanction in Murray and Whitten, and warned against in Taylor and Goodie. Judges, not prosecutors, should admonish the defendant on the range of punishment.

The State further contends that because the judgment, the waiver of constitutional rights, the agreement to stipulate, and the docket sheet all reflect that the trial judge admonished appellant concerning the consequences of his plea, the judge must have complied with article 26.13. A similar argument, however, was rejected in Murray. 561 S.W.2d at 822. In Murray,

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Khan Phi Nguyen v. State
859 S.W.2d 437 (Court of Appeals of Texas, 1993)

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Bluebook (online)
859 S.W.2d 437, 1993 WL 207843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/khan-phi-nguyen-v-state-texapp-1993.