Walker v. State

524 S.W.2d 712, 1975 Tex. Crim. App. LEXIS 1024

Opinions

OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

Our prior opinion in this cause is withdrawn.

On motion for rehearing appellant urges that his conviction be reversed because the trial court wholly failed to advise him of the range of punishment at the time of his plea of guilty, as required by Article 26.13, Vernon’s Ann.C.C.P.¹

In Guster v. State, Tex.Cr.App., 522 S.W.2d 494, this Court held:

“. . . where there is no showing that a defendant was prejudiced or injured by the failure of the trial court to fully comply with Article 26.13, supra, and where no objection is made to such failure at the time the plea is accepted or by motion for new trial, that failure to fully comply will not constitute reversible error on appeal.”

In the instant case, there was a total failure to explain or even mention the range of punishment to appellant. It is, therefore, not within the scope of the rule stated in Guster v. State, supra. See also Williams v. State, Tex.Cr.App., 522 S.W.2d 488, and Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479.

In Tellez v. State, Tex.Cr.App., 522 S.W.2d 500, decided the same day as Guster, supra, and Williams, supra, this Court held that, if a trial court in admonishing an accused of the consequences of his plea misstates the range of possible punishment, but the accused is not misled to his prejudice by such erroneous admonishment, the error is harmless. See also Cameron v. State, Tex.Cr.App., 508 S.W.2d 618; Jorden v. State, Tex.Cr.App., 500 S.W.2d 117; Valdez v. State, Tex.Cr.App., 479 S.W.2d 927. That rule likewise does not apply in this case because the trial court gave absolutely no admonishment respecting the range of possible punishment.

Because the trial court here did not merely fall short of full compliance, but in fact totally failed to admonish appellant of the consequences of his plea, in total disregard of Article 26.13, Y.A.C.C.P. (see concurring opinion in Cameron v. State, supra), the conviction is reversed.

Appellant’s motion for rehearing is granted; the judgment affirming the conviction is set aside; and the judgment is reversed and remanded.

Footnotes

1

. We note that Article 26.13, supra, has recently been amended (S.B. 122) and effective June 19, 1975, provides:

“Article 26.13. PLEA OF GUILTY, (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; and

“(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.

“(b) No plea of gulty or a plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.

“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”