Larry Everette White v. The State of Texas--Appeal from 196th District Court of Hunt County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00174-CR

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LARRY EVERETT WHITE, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court No. 21,421

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

On June 6, 2003, Larry Everett White, Jr., waived his right to a jury trial and pled guilty in Hunt County cause number 21,421 to evading arrest using a vehicle. // See Tex. Pen. Code Ann. 38.04(b)(1) (Vernon 2003) (state jail felony). The indictment further alleged White had been previously, finally, and sequentially convicted of at least two additional felony offenses. In a written admonishment, the trial court instructed White that the range of punishment applicable in this case was "not more than 10 years or less than 2 years in the Institutional Division of the Department of Criminal Justice . . . ." White then pled "true" to enhancement allegations, and the trial court ordered a presentence investigation (PSI) report.

After considering further testimony on punishment and the PSI report at a July 24, 2003, hearing, the trial court sentenced White to twenty years' imprisonment. (There was not a negotiated plea agreement in this case.) White timely appealed his conviction and sentence to this Court.

On appeal, White contends the trial court failed to admonish him on the correct range of punishment. Before accepting a defendant's plea of guilty, a trial court is required to admonish the defendant about the proper range of punishment applicable to the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2004). It is not, however, always reversible error if the trial court does not strictly comply with the requirements of Article 26.13 of the Texas Code of Criminal Procedure. "Substantial compliance with [Article 26.13's] requirement is sufficient unless an appellant affirmatively shows he was not aware of the consequences of his plea and he was misled or harmed by the court's admonishments." Davis v. State, 7 S.W.3d 695, 697 (Tex. App. Houston [1st Dist.] 1999, no pet.). If the trial court undertakes to admonish the defendant, the sentence given is within the range prescribed by law, and the defendant fails to affirmatively show he or she was harmed by the improper Article 26.13 admonishments, then we must find the trial court substantially complied with the requirements of Article 26.13. Hughes v. State, 833 S.W.2d 137, 139 40 (Tex. Crim. App. 1992).

Evading arrest is a state jail felony if the actor uses a vehicle while in flight. Tex. Pen. Code Ann. 38.04(b)(1). If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.

Tex. Pen. Code Ann. 12.42(a)(2) (Vernon Supp. 2004). Second degree felonies carry a punishment range of no fewer than two years', nor more than twenty years', imprisonment. Tex. Pen. Code Ann. 12.33(a) (Vernon 2003).

The trial court's written admonishments informed White the range of punishment in this case was up to ten years' imprisonment. The indictment alleged White had previously and finally been convicted in the 114th Judicial District Court of Wood County July 11, 1996, of unlawfully possessing a firearm before the fifth anniversary of his release from confinement. See Tex. Pen. Code Ann. 46.04(a), (e) (Vernon Supp. 2004) (third degree felony). The indictment further alleged that White had previously and finally been convicted in the 292nd Judicial District Court of Dallas County August 12, 1987, of delivery of a controlled substance and that this conviction became final before White was convicted of possessing a firearm in Wood County. White pled "true" to these allegations, thereby enhancing the punishment range to up to twenty years' imprisonment, not merely ten years' imprisonment as the trial court had informed White in the written admonishments. Therefore, the trial court erred by not stating the proper punishment range.

Nonetheless, at the June hearing on White's guilty plea, the trial court asked White, "On the evading arrest if the State -- it's a state jail felony, but if the State proves two priors it goes to a second degree, 2 to 20. Do you understand that?" White responded affirmatively. Later, at the July punishment hearing, the trial court again asked, "And you know the range of punishment there then could result in second degree felony punishment, which is a range of 2 to 20 years and/or a fine up to $10,000, is that clear?" Again, White affirmed he understood the proper range of punishment included incarceration of up to twenty years.

Although the trial court erroneously listed the range of punishment as two to ten years' imprisonment in its written admonishments, the record is clear that White understood the true potential punishment range included incarceration of up to twenty years for the underlying offense. Accordingly, we cannot say White has shown he was harmed by the erroneous written admonishments.

We affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: March 2, 2004

Date Decided: March 18, 2004

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