David M. Kurtzemann v. The State of Texas--Appeal from 209th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-97-126-CR

DAVID M. KURTZEMANN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 209th District Court

Harris County, Texas

Trial Court # 721867

O P I N I O N

Appellant Kurtzemann appeals from his conviction for felony driving while intoxicated (enhanced by a prior felony conviction) for which he was sentenced to 16 years in the Texas Department of Criminal Justice-Institutional Division.

Appellant was indicted for felony driving while intoxicated, enhanced by a prior felony escape conviction. Appellant pled guilty to the charge and "true" to the enhancement. After consideration of a presentence investigation the trial judge sentenced Appellant to 16 years in prison.

Appellant appeals on one point of error: "The trial court incorrectly admonished Appellant regarding the range of punishment."

Appellant does not challenge the sufficiency of the evidence to support his plea of guilty. There was no plea bargain. This was an open plea.

Appellant was charged with the third degree felony offense of driving while intoxicated, enhanced by one prior felony conviction. The punishment range for a third degree felony, enhanced by one prior felony conviction, is "not more than 20 years or less than 2 years (plus a possible fine). Tex. Penal Code 12.34(a), 12.41(a)(3).

The trial court admonished Appellant that the punishment range was "life or not more than 99 years or less than 5 years (plus a possible fine)." Article 26.13(a)(1) requires the trial court to admonish a defendant on the range of punishment for the offense prior to accepting the guilty plea. Article 26.13(c) provides that substantial compliance by the court is sufficient unless the defendant affirmatively shows that he is not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.

Where there is no admonishment as to the range of punishment when a defendant pleads guilty, fundamental error occurs without regard to whether the defendant is harmed. Ex parte Smith, 678 S.W.2d 78, 79 (Tex. Crim. App. 1984). But an admonishment which is incorrect, as here, constitutes substantial compliance with Article 26.13. In each situation the burden shifts to the defendant to establish that he was unaware of the consequences of this plea and was misled or harmed by the court s admonishment. Eatman v. State, 768 S.W.2d 310, 311 (Tex. Crim. App. 1989); Robinson v. State, 739 S.W.2d 795, 801 (Tex. Crim. App. 1989); Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992); Ramos v. State, 928 S.W.2d 157, 160 (Tex. App. Houston [14th Dist.] 1996, no pet.).

Hughes, supra, succinctly states the rule: Substantial compliance will only be found where a trial court has undertaken to admonish the defendant, the sentence is within the range prescribed by law, and the defendant has failed to affirmatively show harm.

In this case there is no evidence that Appellant would have agreed to enter his plea if he had been properly admonished. Appellant s complaint was not raised in a motion for a new trial and there is no indication in the record that Appellant s plea decision would have been different had he been properly admonished. Appellant s punishment was fixed at 16 years which was within the applicable statutory range. No harm is shown.

Appellant s point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 10, 1997

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