CHARLES DAVID HIX, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM, and Opinion Filed November 14, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-91-01423-CR
                                        No. 05-91-01424-CR
............................
CHARLES DAVID HIX, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F-91-26403-MI and F-91-36348-MI
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O P I N I O N
Before Justices Morris, James, and Wolfe
Opinion By Justice James
        Charles David Hix appeals two separate convictions for felony theft with two enhancement paragraphs. For each conviction, appellant contends in his sole point of error that the trial court's failure to admonish him of the punishment range for felony theft rendered his guilty plea involuntary. For the reasons set forth below, we affirm the trial court's judgment.
 
PROCEDURAL BACKGROUND
        The grand jury indicted appellant for two separate offenses of theft in an amount less than $750. At the time appellant committed the offenses, section 31.03(e)(4)(C) of the Texas Penal Code classified appellant's offense as a third degree felony because appellant had been convicted of theft twice before. FN:1 Each indictment also included two enhancement paragraphs. Appellant waived a jury trial, pleaded guilty to the primary offense of felony theft, and pleaded true to the two enhancement paragraphs. In accordance with the plea bargain agreement, the trial court sentenced appellant to twenty-five years' confinement for each offense.
PROPER ADMONISHMENT AND VOLUNTARY PLEA
        For each conviction, appellant contends in his sole point of error that the trial court failed to substantially comply with article 26.13 of the Texas Code of Criminal Procedure. Specifically, appellant complains that the trial court failed to admonish him of the punishment range for felony theft. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon 1991). Appellant argues the trial court's improper admonishments rendered his plea involuntary.
        The State responds that the trial court substantially complied with article 26.13 by admonishing appellant in writing of the punishment range for felony theft with two enhancements. Not only did the trial court substantially comply, the State argues appellant has failed to show he was misled or harmed. See Grays v. State, 888 S.W.2d 876, 878 (Tex. App.--Dallas 1994, no pet.).
Applicable Law
        Article 26.13(a)(1) states that the trial court shall admonish the defendant of the punishment range attached to the offense prior to accepting a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon 1991). Although the trial court must comply with article 26.13, substantial compliance will be sufficient unless the defendant affirmatively shows he was unaware of the consequences of his plea and was misled or harmed by the court's admonishments. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1991); Smith v. State, 857 S.W.2d 71, 73-74 (Tex. App.--Dallas 1993, pet. ref'd).
        Substantial compliance under Article 26.13 does not require any particular form or procedure of admonishment. Id. at 74. The statute allows the trial court to give the admonishments orally or in writing. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1991); Smith, 857 S.W.2d at 74. Substantial compliance exists even if the admonishments are incomplete or incorrect. Id. To reverse a conviction in which the trial court substantially complied with article 26.13, the burden shifts to the defendant to show he entered his plea without understanding the consequences and was therefore harmed. See Williams v. State, 770 S.W.2d 81, 82 (Tex. App.--Dallas 1989, no pet.).
        When a defendant pleads guilty to an indictment that includes enhancement paragraphs, the trial court should admonish the defendant of the full range of punishment available through the enhancements. See Gomez v. State, 921 S.W.2d 329, 335 (Tex. App.--Corpus Christi 1996, no pet.). In Teamer v. State, 557 S.W.2d 110, 111 (Tex. Crim. App. 1977), the appellant complained the trial court failed to substantially comply with article 26.13. Appellant argued the trial court should have admonished him of the punishment range for a third degree felony. Id. Instead, the trial court admonished him of the punishment range for a second degree felony because the appellant was also pleading true to an enhancement paragraph. Id. The Court of Criminal Appeals concluded that the punishment range given was correct for a third degree felony with an enhancement and therefore the trial court substantially complied with article 26.13. Id.
Application of Law to Facts
        The trial court admonished appellant in writing of the applicable punishment range for felony theft enhanced with two prior felonies. FN:2 At the time appellant committed the offenses, section 12.42(d) stated that if a defendant is on trial for a felony and has been previously convicted of two felony offenses, he shall be punished for life, or for any term not exceeding ninety-nine years or less than twenty-five years. Id. In this case, the trial court admonished appellant that the punishment range was not less than twenty-five nor more than ninety-nine years or life. Thus, the trial court properly informed appellant of the punishment range for felony theft with two enhancements.
        Appellant argues, however, that the trial court should also have informed him of the punishment range for felony theft standing alone. At the time of appellant's trials, the Texas Penal Code stated that the punishment range for felony theft is imprisonment between two and ten years, confinement in a community correctional facility for a term not more than one year, and a fine not to exceed $10,000. Act of May 28, 1989, 71st Leg., R.S., ch. 785, § 4.01, 1989 Tex. Gen. Laws 3471, 3491, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3603 (current version at Tex. Penal Code Ann. § 12.34 (Vernon 1996). The trial court did not need to give this admonishment because appellant stipulated he committed the prior offenses as alleged in the indictments for enhancement purposes. See Teamer, 557 S.W.2d at 111.         
        The trial court substantially complied with article 26.13 by informing appellant of the punishment range for felony theft with two enhancements. Because the trial court substantially complied, the burden shifts to appellant to show he did not understand the consequences of his guilty plea. See Smith, 857 S.W.2d at 74. The record shows that appellant read and understood his constitutional rights, signed a judicial confession freely and voluntarily, and testified he was satisfied with his counsel's representation. The trial court also asked appellant whether a plea bargain agreement existed. Appellant said a plea bargain existed of twenty-five years in the penitentiary. There is no evidence in the record appellant was misled and appellant has failed to show he did not understand the consequences of his plea.
        We conclude that the trial court substantially complied with article 26.13 by informing appellant of the punishment range for felony theft with two enhancement paragraphs. Appellant has failed to show he did not understand the consequences of his guilty plea because the court failed to inform him of the punishment range for felony theft standing alone. Therefore, we overrule appellant's point of error.
        Accordingly, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          TOM JAMES
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
911423F.U05
 
FN:1 See Act of May 25, 1985, 69th Leg., R.S., ch. 599, § 1, 1985 Tex. Gen. Laws 2244, 2245, amended by Act of May 17, 1991, 72nd Leg., R.S., ch. 565, § 1, 1991 Tex. Gen. Laws 2003, 2003, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3637-38, amended by Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 9, 1995 Tex. Gen. Laws 2734, 2738 (current version at Tex. Penal Code Ann. § 31.03(e)(4)(E) (Vernon Supp. 1996).
FN:2 See Act of May 18, 1983, 68th Leg., R.S., ch. 339, § 1, 1983 Tex. Gen. Laws 1750, 1750, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3603-04, amended by Act of May 25, 1995, 74th Leg., R.S., ch. 250, § 1, 1995 Tex. Gen. Laws 2176, 2176, amended by Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2735 (current version at Tex. Penal C ode Ann. § 12.42(d) (Vernon Supp. 1996).
File Date[11-14-96]
File Name[911423F]