Fuller v. State

576 S.W.2d 856 (1979)

Joe Alton FULLER, Appellant, v. The STATE of Texas, Appellee.

No. 56112.

Court of Criminal Appeals of Texas, Panel No. 1.

February 14, 1979.

Kenneth W. Boyd, Cleburne, for appellant.

John R. MacLean, Dist. Atty. and Wayne Bridewell, Asst. Dist. Atty., Cleburne, for the State.

Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for driving while intoxicated, second offense, on appellant's plea of guilty before the jury. The punishment was assessed by the jury at one year imprisonment.

Appellant's single ground of error contends that fundamental error was committed by the trial court when it failed to admonish the appellant on the range of punishment attached to the offense before accepting his guilty plea.

Appellant went to trial before the jury on a plea of not guilty and after the State rested its case sought to change his plea to guilty. The trial court questioned the appellant, but clearly failed to admonish him as to the range of punishment attached to this offense. The jury returned a verdict of guilty as instructed to do so by the court's charge. After hearing the State's case on *857 punishment, the jury assessed the penalty at one year imprisonment.

Article 26.13(a)(1), V.A.C.C.P., provided at the time of appellant's plea as follows:

(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; ...

This total failure to admonish the appellant as to the range of punishment attached to the offense to which he pled guilty constitutes reversible error under the authority of McDade v. State, Tex.Cr.App., 562 S.W.2d 487 (per Douglas, J.), and Murray v. State, Tex.Cr.App., 561 S.W.2d 821.

The judgment of conviction is reversed and remanded.