Antonio Contreras v. The State of Texas--Appeal from County Court of Caldwell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-008-CR
ANTONIO CONTRERAS,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT OF CALDWELL COUNTY,
NO. 20,433, HONORABLE EDWARD L. JARRETT, JUDGE

PER CURIAM

Appellant pleaded guilty and judicially confessed to driving while intoxicated, second offense. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Supp. 1991). The court found appellant guilty and assessed punishment at incarceration for two years and a $2000 fine.

In his only point of error, appellant contends that the judgment of conviction is void because the record does not reflect that he was informed of the range of punishment applicable to the offense prior to entering his plea of guilty. (1) Appellant relies on McMillan v. State, 703 S.W.2d 341 (Tex. App. 1985), rev'd, 727 S.W.2d 582 (Tex. Cr. App. 1987). In McMillan, the court of appeals held that federal and state due process requires that the record must affirmatively reflect that a defendant incarcerated for a misdemeanor offense was informed of at least the maximum applicable punishment before he entered his plea of guilty. Concluding that the record before it was deficient in that regard, the court of appeals reversed the conviction. The Court of Criminal Appeals reversed the judgment of the court of appeals, holding that the record was adequate to show that the defendant had been informed of the applicable punishment range. The Court of Criminal Appeals expressly declined to consider whether the court of appeals had been correct in holding that such a showing was required by due process. The Court of Criminal Appeals did state, however, that due process does not require that the trial judge inform the defendant of the punishment range on the record.

On October 31, 1990, appellant appeared in court with appointed counsel to enter his plea. During the course of this hearing, appellant was questioned by the court under oath.

 

THE COURT: What I need to get straight with you, Mr. Contreras, do you understand that this is what we call an "open plea"?

 

THE DEFENDANT: I understand plea, correct, sir.

 

THE COURT: And you understand that not only could I give you probation and require you to go to jail for 72 hours, I could actually put you down in the county jail for two years?

 

THE DEFENDANT: I know. He [counsel] explained me that, too, sir.

 

THE COURT: So, you're aware of that.

 

THE DEFENDANT: Right. Correct, sir.

 

On November 19, 1990, appellant returned to court for assessment of punishment. While urging the court to place appellant on probation, defense counsel stated that he and appellant were aware of the punishment range for driving while intoxicated, second offense.

When determining whether a guilty plea was knowingly and voluntarily made, the entire record should be considered. Williams v. State, 522 S.W.2d 483 (Tex. Cr. App. 1975). The record as a whole in this cause is adequate to establish that appellant had been informed by counsel of the applicable range of punishment before he pleaded guilty. Thus, without adopting the constitutional standard enunciated by the court of appeals in McMillan, we find that that standard was met in this cause.

 

The judgment of conviction is affirmed.

 

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: May 15, 1991

[Do Not Publish]

1. Appellant does not contend that he did not know the range of punishment, does not contend that his plea was in any way involuntary, and does not contend that his trial counsel was ineffective for having failed to properly advise him prior to the plea.