Tellez v. State

522 S.W.2d 500, 1975 Tex. Crim. App. LEXIS 941

• Court: Court of Criminal Appeals of Texas
• Decided: April 30, 1975
• Docket: 49637, 49638
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

The conviction in Cause No. 49,637 was for the offense of burglary of a building with intent to commit theft under Article 1390, Vernon’s Ann.P.C. (1925), in effect in 1973 at the time of indictment. The conviction for the burglary of a vehicle in Cause No. 49,638 was pursuant to Section 30.04, V.T.C.A. Penal Code (effective January, 1974).

The trial judge, in admonishing appellant, stated that the range of punishment was from two to ten years in the first case. The statute provided for a punishment of two to twelve years. In the second case the admonishment was correct as to the number of years, but the court omitted Section 12.34, Subsection b, V.T.C.A. Penal Code, which provides:

“(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $5,000.”

After the court ascertained that appellant wished to plead guilty, the following occurred:

“THE COURT: In addition, you have the right to remain silent, you don’t have to make any statement, confess to anything, agree to anything or stipulate to anything. It is up to the State to prove your guilt by competent evidence. It is not up to you to prove your innocence. Do you understand that?

“THE DEFENDANT: Yes, sir.

“THE COURT: I have to get the punishment range here, the range of punishment. Do you know, offhand?

“MR. FLAKE: (Defense counsel) Your Honor, it is two to ten on the burglary. For the breaking and entering a motor vehicle—

“THE COURT: Burglary with intent to commit theft, that is the first one.

“MR. FLAKE: Well, it is two to ten on both of them, Your Honor.

“THE COURT: Two to ten. Are we certain of that ?

“MS. MacRAE: (Prosecutor) Yes, sir. The burglary occurred on the 17th of October, 1973.

“THE COURT: So, that is two to ten?

“MS. MacRAE: Yes, sir.

“THE COURT: The other one is burglary of a vehicle and that is two to ten, too; is that correct ?

“MS. MacRAE: Yes, sir.

“THE COURT: Mr. Tellez, for the record, in Cause Number 73-CR-2436 in which you stand charged with the felony offense of burglary with intent to commit theft, the possible punishment, in the event you are found guilty, is a minimum of two years and a maximum of ten years in the Texas Department of Corrections.

In Cause Number 74-CR-832-B, in which you stand charged by indictment with the felony offense of burglary of a vehicle, the range of punishment, in the event you are found guilty, is from a minimum of two years to a maximum of ten years.

Knowing what the possible punishments may be in each or both of these cases, knowing what your legal and constitutional rights are, do you still desire to change your respective pleas in both of these cases from not guilty to guilty and do you still desire to waive a jury in each and both of these cases ?

“THE DEFENDANT: Yes, sir/’

The appellant waived a jury and entered pleas of guilty in both cases. He made a judicial confession and evidence was introduced. The judge found appellant guilty and asked for recommendations. The prosecutor recommended four years. The court assessed the punishment at four years in each case. After a hearing, the court denied probation and gave appellant credit from the time he was first arrested.

Defense counsel wrote in his brief that the trial court, “although not complying with the exact wording of Article 26.13, V.A. [Vernon’s Ann.] C.C.P., did substantially comply with said article.”

Alvarez v. State, 511 S.W.2d 521 (Tex. Cr.App.1974), is directly in point. The writer agreed to the reversal on the basis of former opinions. After further consideration, it appears that the Alvarez decision and some of its predecessors were wrong.

Judge Morrison, joined by Judge Odom, dissented to the reversal. The reasoning in that dissenting opinion is logical. It is as follows:

“It would appear that this question has divided this Court before. See Valdez v. State, Tex.Cr.App., 479 S.W.2d 927; Jorden v. State, Tex.Cr.App., 500 S.W.2d 117, and Cameron v. State, Tex.Cr.App., 508 S.W.2d 618.

“Surely if an accused would voluntarily plead guilty thinking his punishment might be life (which is the admonishment the majority say should have been given), then his plea based upon the assumption that his punishment could be no higher than 20 years would likewise be voluntarily made.

“Logic dictates that the Legislature by the enactment of Art. 26.13, V.A.C.C.P., required that an accused be admonished of the consequences of his plea of guilty to avoid a situation where an accused thought his possible punishment could be a certain number of years and then (after he had entered his plea of guilty) learn that he had been assessed a greater punishment. Such a situation did not arise in the case at bar.

“We should adopt the holding in the cases cited above and hold that this appellant was not misled to his prejudice and that the error of the court in his admonishment was a harmless error.”

Even though a rule has been established for a long time, if there is no logical or reasonable basis for such a rule, it should be overruled. See Guster v. State, Tex.Cr.App., 522 S.W.2d 494 (delivered this date), and Williams v. State, Tex.Cr.App., 522 S.W.2d 483 (No. 49,498, delivered this date). See also Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479 (1975).

The dissenting opinion contains no reasons except that the Court has held otherwise for a long time and that the statute is mandatory. It does not attempt to show why this statute, where no harm has been claimed, should be given some sort of special interpretation or status when harm has to be shown if other mandatory statutes and constitutional provisions are not followed to the letter. See Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973), where the failure to require the court reporter to take down the voir dire examination of the jury panel was held not to be reversible. In Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972), there was no reversible error where appointed counsel was not given ten days by the learned trial court to prepare for a revocation of probation hearing. See also the cases cited in the concurring opinion in Williams v. State, supra.

The main thing wrong with the decision in this case is that it has been too long in coming. As the late Judge W. L. Davidson said in Cline v. State, 36 Tex.Cr.R. 320, 36 S.W. 1099 (1896): “[Adjudicated error, persisted in, cannot make truth of that error.” Just because we have been in error in the past does not justify further error. Alvarez v. State, supra, and all cases to the extent that they are contrary to this opinion are overruled.

The judgments are affirmed.