Thomas Ray Robertson, Sr. v. The State of Texas--Appeal from 220th District Court of Hamilton County

NO. 10-90-203-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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THOMAS RAY ROBERTSON, SR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 220th Judicial District Court

Hamilton County, Texas

Trial Court # 6391

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O P I N I O N

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Appellant was indicted for burglary of a habitation but pled guilty to burglary of a building under a plea-bargain agreement. The court deferred adjudication of his guilt and placed him on probation for two years. Subsequently, the court revoked his probation, adjudicated his guilt, and sentenced him to twelve years in prison. The judgment will be affirmed.

Appellant's first point is that the court did not have jurisdiction to accept his guilty plea for burglary of a building when he was indicted for burglary of an habitation. The court lacked jurisdiction, he argues, because burglary of a building is not a lesser-included offense of burglary of a habitation. Burglary of a building has been held to be a lesser-included offense of burglary of a habitation. Jones v. State, 532 S.W.2d 596, 601 (Tex. Crim. App. 1976). Point one is overruled.

Point two is that the court erred when it accepted Appellant's guilty plea without admonishing him of the range of punishment. See Tex. Code Crim Proc. Ann. art. 26.13 (Vernon 1989). Generally, a defendant who desires to appeal a non-jurisdictional error which occurred prior to the entry of his plea must either raise the error in a written motion before entering his plea or attain the trial court's permission to appeal. Tex. R. App. P. 40(b)(1). Because Appellant has failed to comply with this rule, he cannot complain about a lack of admonishment on punishment.

However, a complete failure to admonish on the range of punishment is fundamental error requiring a reversal. Ex parte Smith, 678 S.W.2d 78, 79 (Tex. Crim. App. 1984). The complete failure to admonish may be raised at any time. Ex parte Marshall, 479 S.W.2d 921, 923 (Tex. Crim. App. 1972); Myers v. State, 780 S.W.2d 441, 444 (Tex. App. Texarkana 1989, pet. ref'd). Assuming, without deciding, that the holdings in Marshall and Myers do not require the defendant to obtain the trial court's permission to complain about a complete failure to admonish, we will consider the merits of Appellant's complaint.

Substantial compliance with article 26.13, which requires the court to admonish the defendant of the range of punishment before accepting a guilty plea, is all that is required. Ex parte Cervantes, 762 S.W.2d 577, 578 (Tex. Crim. App. 1988). If an admonishment is given, albeit incorrectly, then substantial compliance with article 26.13 is presumed, and the burden shifts to the defendant to show that he was harmed by entering his plea without understanding the consequences. Smith, 678 S.W.2d at 79. However, a partial admonishment on punishment will not substantially comply with article 26.13 in two situations: (1) when the sentence assessed is outside the statutory range, and (2) when the sentence assessed is not within the range as erroneously given by the court. Hodges v. State, 604 S.W.2d 152, 156 (Tex. Crim. App. [Panel Op.] 1980); Weekley v. State, 594 S.W.2d 96, 97 (Tex. Crim. App. [Panel Op.] 1980).

Prior to pleading guilty, Appellant signed a sworn statement admitting that "the Court has advised me of the consequences of a plea of guilty, including the minimum and maximum punishment provided by law." Furthermore, before accepting the plea the court warned him of the correct maximum punishment for the offense of burglary of a building, when it told him, "I would hate for you to end up six to eight months down the line standing here and me having to send you to the penitentiary, but if you don't live up to these terms and conditions of probation, that's what I'll do. . . . And I can send you [to prison] for up to twenty years. Do you understand?" (Emphasis added).

Appellant's sentence (twelve years) was within the statutory range of punishment for burglary of a building. See Tex. Penal Code Ann. 12.33; 30.02(a),(c) (Vernon 1974 and 1989). Because the court correctly admonished Appellant of the maximum punishment and sentenced him within the statutory range, the court substantially complied with article 26.13. See Cervantes, 762 S.W.2d at 578. Under the circumstances, Appellant had to show that he was harmed by the court's partial admonition. See Smith, 678 S.W.2d at 79. This he has failed to do. Point two is overruled and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed July 25, 1991

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