Tomika Monique Ester v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2009
• Docket: 14-08-00616-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 21, 2009

Affirmed and Memorandum Opinion filed April 21, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00616-CR

TOMIKA MONIQUE ESTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 3rd District Court

Anderson County, Texas

Trial Court Cause No. 28,678

M E M O R A N D U M   O P I N I O N

The trial court granted the State=s motion to revoke community supervision and sentenced appellant, Tomika Monique Ester, to two years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  Appellant  seeks reversal of the order revoking community supervision.  In her sole point of error, appellant contends her plea of Atrue@ was not voluntary because she was not informed of the potential range of punishment. 

Factual and Procedural Background

Appellant was originally indicted for possession of a controlled substance and voluntarily entered a guilty plea.  The trial court sentenced appellant to two years= confinement in the Texas Department of Criminal Justice State Jail Division probated for three years.  Approximately six months after the judgment, the State filed a motion to revoke community supervision, alleging appellant violated the terms of her community supervision.  The trial court modified the conditions of appellant=s community supervision and dismissed the State=s motion.  Approximately eight months after the modification, the State filed a second motion to revoke community supervision, alleging appellant violated the modified terms of her community supervision.  At the revocation hearing, appellant entered a plea of true to the allegations in the motion to revoke.  It is undisputed that the trial court gave appellant no admonishments before she entered her plea.  The court found appellant=s plea freely and voluntarily made and subsequently revoked her community supervision.  Appellant was sentenced to two years confinement in the Institutional Division of the Texas Department of Criminal Justice.  Appellant appeals the revocation of her community supervision. 

Discussion

In her sole issue, appellant contends her plea of Atrue,@ made during probation revocation proceedings, was not voluntary.  Specifically, she alleges the trial court erred by failing to admonish her of the potential range of punishment before she entered her plea of true. 

A.      Standard of Review

An order revoking probation is subject to an abuse of discretion standard of review.  Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).  An appellate court affords almost total deference to a trial court=s determination of the historical facts supported by the record, especially when the trial court=s fact findings are based on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  The appellate court also affords the same amount of deference to a trial court=s ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if the resolution of those questions turns on an evaluation of credibility and demeanor.  Id.  The court reviews de novo those questions not turning on credibility and demeanor.  Id.  When there are no written findings in the record, as in this case, an appellate court is to view the evidence in the light most favorable to the trial court=s ruling and uphold the ruling on any theory of law applicable to the case.  Id.

B.      Analysis

In a criminal proceeding, the court shall admonish the defendant of the range of punishment attached to the offense prior to accepting a plea of guilty or a plea of nolo contendere.  See Tex. Code Crim. Proc. art 26.13(a)(1) (Vernon 2009).  Appellant argues the trial court erred by failing to admonish her of the range of punishment before she made a  plea of true during her probation revocation hearing. 

Article 26.13 of the Texas Code of Criminal Procedure applies only when a defendant enters a plea of guilty or nolo contendere in a felony prosecution.  Gutierrez v. State, 108  S.W.3d 304, 309 (Tex. Crim. App. 2003).  The Court of Criminal Appeals has expressly held Article 26.13 does not apply in probation revocation proceedings.  Id., Lanum v. State, 952 S.W.2d 36, 39 (Tex. App.CSan Antonio 1997, no pet.).  Appellant failed to cite any authority, other than Article 26.13, to support her contention the trial court judge erred in failing to admonish her of the range of punishment.  Because we hold Article 26.13 does not apply to probation revocation proceedings, appellant=s argument is without merit.  Accordingly, we overrule appellant=s sole issue.

Conclusion

Having overruled appellant=s sole issue on appeal, we affirm the order of the trial court.

/s/      John S. Anderson

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).