Williams v. State

522 S.W.2d 488, 1975 Tex. Crim. App. LEXIS 937

Opinions

OPINION

ODOM, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court for the offense of felony theft. Punishment was assessed at five years.

Court-appointed counsel on appeal has filed a brief stating that he has concluded that the appeal is frivolous. A copy of the brief was furnished appellant. No pro se brief has been filed. The procedures in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493, and Gainous v. State, Tex.Cr.App., 436 S.W.2d 137, were complied with. We agree that the appeal is wholly frivolous and without merit.

We have noticed, however, that the admonishments given at the time of the plea of guilty may not have been in full compliance with the requirements of Article 26.-13, Vernon’s Ann.C.C.P.¹ But no objection to those given was made to the court below, either at the time the plea was taken or by motion for new trial. The rationale upon which we have considered this issue on our own motion in the past has been that the failure to give proper admonishments constituted fundamental error which could be raised for the first time in a habeas corpus proceeding, and accordingly was an issue which would require consideration in the interest of justice under Article 40.09, Section 13, V.A.C.C.P., even if not raised.

In the recent case of Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479 (Feb. 5, 1975, Leave to File Motion for Rehearing denied on April 30, 1975), this Court held that “in a collateral attack upon á plea of guilty there must be a showing that a defendant was prejudiced or injured for the failure of the trial court to fully comply with Article 26.13, supra,” to require a new trial. With collateral relief no longer available merely upon a showing that Art. 26.13 was not fully complied with, the rationale for considering it in the interest of justice, when not asserted, no longer exists, and it will no longer be addressed by this Court in such circumstances unless prejudice or injury is shown. All cases in conflict with our holding herein are overruled.²

Finding no reversible error, the judgment is affirmed.

1 . The transcription of the court reporter’s notes is devoid of any indications that the trial court inquired as to whether appellant’s plea was induced by force or fear.

2 . Although not exhaustive, the cases overruled include Cevilla v. State, Tex.Cr.App., 515 S.W.2d 676; Alvarez v. State, Tex.Cr.App., 511 S.W.2d 521; Pigg v. State, Tex.Cr.App., 508 S.W.2d 652; Heathcock v. State, Tex. Cr.App., 494 S.W.2d 570; and Jefferson v. State, Tex.Cr.App., 486 S.W.2d 782.