Ricondo v. State

634 S.W.2d 837, 1982 Tex. Crim. App. LEXIS 973

• Court: Court of Criminal Appeals of Texas
• Decided: June 30, 1982
• Docket: 58970
• Status: Published

Opinions

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for possession of heroin. Punishment, enhanced by two prior felony convictions, was assessed at life imprisonment.

The appellant, by ground of error four, contends that his plea of guilty cannot stand because the trial court failed to correctly admonish him as to the range of punishment to be assessed. The record reflects that after the indictment was read to the jury, the appellant refused to enter a plea. The trial judge entered a plea of not guilty for appellant, Art. 26.12, Vernon’s Ann.C.C.P. The first witness was then called to the stand. Shortly thereafter, defense counsel approached the bench and informed the court that his client wanted to enter a plea of guilty and let the jury assess his punishment. The first witness was allowed to complete his testimony, then the jury was retired from the courtroom and the appellant was questioned concerning his desire to change his plea.

The court gave the following admonishment concerning the range of punishment:

“THE COURT: The offense you are charged with, the possession of heroin, is a second degree felony. Of course, in your case it is an enhanced punishment. But, second degree felonies are punishable by a minimum of two years, a maximum of twenty years, and, in addition, you can be—that is in the Texas Department of Corrections and, in addition, you can be fined not to exceed ten thousand dollars. Understanding what the punishment can be do you still persist in entering a plea of guilty?”

THE DEFENDANT: Yes, sir.”

Nowhere in the record is there any indication that the appellant was informed he would be assessed a mandatory sentence of life imprisonment upon a finding of guilt and a finding of true to the enhancement allegations of the indictment.¹

Article 26.13(a)(1), Vernon’s Ann.C.C.P., recites, The purpose of this admonishment is to insure that the defendant entered his plea with full knowledge of its consequences. An affirmative showing of such knowledge is constitutionally required. Whitten v. State, 587 S.W.2d 156 (Tex.Cr.App.1979) (Opinion on Rehearing). The requirements of Article 26.13, supra, are mandatory and the failure of the trial court to comply with the statute may be raised at any time. Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967).

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

(1) the range of punishment attached to the offense; ...”

In Taylor v. State, 591 S.W.2d 826 (Tex.Cr.App.1980), the case was reversed on original submission because of an improper admonishment regarding the punishment range upon entry of the defendant’s guilty plea.

Taylor was charged with aggravated robbery and two prior felony convictions were alleged for enhancement purposes. The court, in admonishing the defendant, stated:

“JUDGE: You plead guilty knowing that the penalty could be up to life imprisonment?

MR. TAYLOR: Yes, sir.

JUDGE: And the lowest you could get, would be what, five years?

MR. DIETZE (District Attorney): Assuming he is found guilty, habitual, assuming he is the same person, two previous convictions, it would be automatic life.

JUDGE: You understand all about that and you still want to plead guilty? A. Yes, sir.”

On rehearing, the court recognized that it is the responsibility of the trial court to admonish the defendant concerning the consequences of his guilty plea. The Court found that the words of the prosecutor were adopted by the trial court; thus, there was substantial compliance with Art. 26.13, supra.

In the instant case, however, we are unable to conclude that there was substantial compliance with the requirements of Art. 26.13, supra. See Henderson v. State, 619 S.W.2d 175 (Tex.Cr.App.1981); Cf. Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.1977); Taylor v. State, 610 S.W.2d 471 (Tex.Cr.App.1981) (Opinion on Rehearing). The appellant was informed that the maximum punishment which could be assessed was twenty years and a $10,000 fine; yet he was sentenced to life imprisonment.

For the failure to admonish the appellant concerning the consequences of his plea, we reverse and remand the cause.

Before the Court en banc.

1 . When the trial court asked for appellant’s plea to the second and third paragraphs of the indictment, defense counsel responded:

“Judge, the defendant neither admits or denies the second and third paragraphs of the indictment.”

The judge entered a plea of “not true” for the appellant.