Malone, Bruce Beethoven v. Texas, the State Of

• Court: Court of Appeals of Texas
• Decided: January 27, 1997
• Docket: 05-91-01851-CR
• Status: Published

Opinion

n

Court of Appeals mtilj Itstrtrt of Wexnz at lallas JUDGMENT

BRUCE BEETHOVEN MALONE, Appeal from the 363rd Judicial District Appellant Court of Dallas County, Texas. (Tr.Ct.No. F-91-61877-JW). No. 05-91-01851-CR V. Opinion delivered by Justice Bridges, Justices Kinkeade and Moseley also THE STATE OF TEXAS, Appellee participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered January 27, 1997.

OS c. DAVID L. BRIDGES JUSTICE AFFIRMED, and Opinion Filed January 27, 1597

In The

(Uourt of Appeals iHftlj Stsirtrt of Gkxas at lalias No. 05-91-01851-CR

BRUCE BEETHOVEN MALONE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-91-61877-JW

OPINION

Before Justices Kinkeade, Moseley, and Bridges Opinion By Justice Bridges

Bruce Beethoven Malone appeals his conviction for possession of less than twenty-

eight grams of cocaine. In one point of error, appellant complains that his guilty plea was

involuntary because the trial court did not inform him of all possible consequences of a

probation violation as required by article 42.12, section 5(a) of the Texas Code of Criminal

Procedure. We affirm the trial court's judgment.

Following a negotiated plea bargain, appellant pleaded guilty to the offense of possession of cocaine in an amount less than twenty-eight grams in exchange for four years

of deferred adjudication probation and a $750 fine. The trial court admonished appellant

orally and in writing of his rights under article 26.13 of the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989). The trial court

also told appellant that if he violated his probation he would be entitled to a hearing at

which the court could adjudicate him and find him guilty. In addition, the trial court told

appellant that he could not appeal the adjudication of guilt and that he could be sentenced

to a maximum of twenty years in prison.

However, the trial court did not inform appellant that if he violated his probation (1)

he could be arrested and detained; (2) the hearing to which he would be entitled would be

limited to a determination by the court as to whether it would proceed to an adjudication

of guilt; and (3) after adjudication of guilt all proceedings, including assessment of

punishment, sentencing, granting of probation, and appellant's appeal continue as if the

adjudication of guilt had not been deferred. See Tex. Code Crim. Proc. Ann. art.

42.12(5)(b) (Vernon Supp. 1997). See Act of May 29, 1989, 71st Leg., R.S., ch. 785, §

4.17, 1989 Tex. Gen. Laws 3471, 3500 (subsequent amendments omitted) (current version

at Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 1997)).

The trial court accepted appellant's guilty plea and found the evidence substantiated

his guilt. The trial court followed the plea bargain agreement, deferred adjudication of

appellant's guilt, and placed appellant on probation for four years. Additionally, the trial

court assessed a $750 fine. Less than two months later, the State moved to adjudicate

-2- appellant's guilt. Appellant pleaded true to the State's allegations. The trial court adjudicated appellant's guilt and assessed a ten-year sentence.

In his sole point of error, appellant argues that his guilty plea was involuntary because the trial court did not inform him of all possible consequences of a probation violation as required by article 42.12, section 5(a) of the Texas Code of Criminal Procedure.

The State asserts that appellant's plea was not involuntary because the trial court substantially complied with article 42.12, section 5(a).

This Court previously concluded that the trial court's failure to give the information

required by article 42.12, section 5(a) in a felony case cannot render a defendant's guilty

plea involuntary. Brown v. State, 915 S.W.2d 533, 538 (Tex. App.-Dallas 1995, pet.

granted); see also Ray v. State, 919 S.W.2d 125, 127 (Tex. Crim. App. 1996). We

determined that, because the legislature placed the "informational" requirement after the

"acceptance of the plea" language, it did not intend the informational requirement to be a

condition precedent to a voluntary plea. Brown, 915 S.W.2d at 537; see also Tex. Code

Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 1997). In this appeal, appellant raises

the same argument we addressed in Brown. Accordingly, we overrule appellant's point of

error. See Brown, 915 S.W.2d at 538.

-3- We affirm the trial court's judgment.

OL^ DAVID L. BRIDGE; JUSTICE Do Not Publish Tex. R. App. P. 90 911851F.U05