DAVID GALLEGOS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 31, 1993.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-91-01736-CR
............................
DAVID GALLEGOS, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F91-43801-TW
..............................................................
O P I N I O N
Before Justices Lagarde, Maloney, and Rosenberg
Opinion By Justice Lagarde
        David Gallegos appeals his conviction for delivery of cocaine. Following a plea bargain agreement, appellant pleaded guilty to the offense alleged in the indictment and pleaded true to an enhancement paragraph. The trial court found appellant guilty and assessed a fifteen-year sentence and a $1,000 fine.
        In two points of error, appellant contends that he did not enter his guilty plea voluntarily under the United States Constitution because the trial court did not admonish him about the correct range of punishment. We affirm.
        The trial court shall not accept a plea of guilty or nolo contendere unless the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989). However, when the record shows that the court properly admonished a defendant, it presents a prima facie showing that the defendant entered a knowing and voluntary plea. Soto v. State, 837 S.W.2d 401, 405 (Tex. App.--Dallas 1992, no pet.). The burden then shifts to the defendant to show that he did not understand the consequences of his plea. Soto, 837 S.W.2d at 405. The purpose of article 26.13 of the Texas Code of Criminal Procedure is to assure the voluntariness of guilty pleas. Johnson v. State, 712 S.W.2d 566, 568 (Tex. App.--Houston [1st Dist.] 1986, no pet.). Article 26.13 sets out the relevant required admonishments: FN:1
(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;
 
* * * *
(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.
Tex. Code Crim. Proc. Ann. art. 26.13(a)(1), (c) (Vernon 1989).
        Article 26.13 requires reversal when the trial court wholly fails to admonish the defendant on the range of punishment. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). However, if the trial court gives an erroneous admonishment on the range of punishment, substantial compliance is deemed to have occurred. Ex parte Smith, 678 S.W.2d 78, 79 (Tex. Crim. App. 1984); DeVary v. State, 615 S.W.2d 739, 740 n.1 (Tex. Crim. App. 1981). The burden then shifts to the defendant to show he entered his plea without understanding the consequences of it, and that this harmed him. Ex parte Smith, 678 S.W.2d at 79.
        Appellant contends that the trial court's incorrect admonishments about the range of punishment rendered his guilty plea involuntary. He argues that his first degree felony under the Controlled Substances Act is not classified in accordance with a first degree felony under the Texas Penal Code because the fines are different. Appellant argues that the trial court should have classified his offense as a third degree felony for enhancement purposes pursuant to section 12.41 of the penal code and enhanced it to a second degree felony pursuant to section 12.42(a). See Tex. Penal Code Ann. §§ 12.41, 12.42(a) (Vernon 1974). We reject appellant's argument.
        Although the offense of delivery of cocaine is defined outside the penal code, it is classified in accordance with its terms. See Branch v. State, 833 S.W.2d 242, 246 (Tex. App.--Dallas 1992, pet. ref'd); Coleman v. State, 794 S.W.2d 926, 929-30 (Tex. App.--Houston [1st Dist.] 1990, no pet.). Section 12.41 applies to determine the classification of an offense to be enhanced under the penal code when that offense is defined outside the penal code and not classified in accordance with its provisions. Childress v. State, 784 S.W.2d 361, 363 (Tex. Crim. App. 1990). Therefore, section 12.41 does not apply to classify appellant's offense. The trial court correctly classified appellant's offense as a first degree felony and enhanced it accordingly under section 12.42(c) of the penal code. The correct range of punishment for appellant's enhanced offense is fifteen to ninety-nine years or life confinement and an optional fine not to exceed $10,000. See Tex. Health & Safety Code Ann. § 481.112(b) (Vernon 1992); Tex. Penal Code Ann. § 12.42(c) (Vernon Supp. 1994).
        The trial court gave admonishments both orally and in writing. The written admonishments state the range of punishment as five to ninety-nine years or life and a fine up to $20,000. Appellant and his counsel signed the written admonishments. Appellant, his counsel, and the State signed a plea bargain agreement agreeing to a fifteen-year sentence and a $1,000 fine. Appellant also signed a plea of true to and a stipulation of evidence concerning the allegations in the enhancement paragraph.
        The trial court explained to appellant that the enhancement paragraph increased the range of punishment:
THE COURT: Also that's going to increase the range of punishment is going to be fifteen years in the Texas Department of Criminal Justice up to ninety-nine years or life; up to ninety-nine years or life and a fine up to ten thousand dollars. Do you understand the full punishment range?
 
THE DEFENDANT: Yes, Your Honor.
The trial court accepted appellant's plea and assessed punishment in accordance with the plea bargain agreement.
         The trial court substantially complied with article 26.13. See Ex parte Smith, 678 S.W.2d at 79. The trial court gave written admonishments on the range of punishment for the basic offense and gave an oral admonishment on the effect of pleading true to the enhancement paragraphs. Appellant has not affirmatively shown that he was unaware of the consequences of his pleas. Appellant's written judicial confession and plea of true to allegations in the enhancement paragraph were admitted into evidence. Appellant has not shown that the trial court's admonishments misled or harmed him. Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989); Ex parte Smith, 678 S.W.2d at 79. Appellant received an oral admonishment on the fifteen-year sentence. The trial court sentenced appellant according to the plea bargain agreement. We overrule appellant's first point of error. We hold that appellant freely and voluntarily entered his guilty plea.
        We further hold that the trial court's acceptance of appellant's guilty plea and plea of true did not violate any of appellant's constitutional rights. See Buckner v. State, 538 S.W.2d 132, 134 (Tex. Crim. App. 1976); Casares v. State, 478 S.W.2d 462, 465 (Tex. Crim. App. 1972). We overrule appellant's points of error.
        We affirm the trial court's judgment.
 
 
                                                                  
                                                                  SUE LAGARDE
                                                                  JUSTICE
Do Not Publish
Tex. R. App. P. 90
911736F.U05
 
FN:1 Appellant complains only of error regarding the range of punishment admonition.
File Date[12-31-93]
File Name[911736F]