Sammy Mendez Garcia v. The State of Texas--Appeal from 194th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-136-CR

SAMMY MENDEZ GARCIA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 194th District Court

Dallas County, Texas

Trial Court # F92-46299-TM

O P I N I O N

This is an appeal by Appellant Garcia from his conviction for delivering less than 28 grams of cocaine for which he was sentenced to 35 years in the Texas Department of Criminal Justice.

On May 10, 1993, Appellant waived a jury and pled guilty before the court. There was no plea-bargain agreement. This was an open plea of guilty. On August 5, 1993, the trial court deferred adjudication and placed Appellant on probation for ten years. On January 4, 1994, in response to the State's second motion to adjudicate, the trial court found Appellant guilty and sentenced him to a term of 35 years.

Appellant appeals on one point of error: "The trial court erred in failing to admonish him of the consequences of his guilty plea because he was not informed that, if he violated the conditions of probation, no appeal could be taken from the court's determination to proceed with an adjudication of guilt on the original charge."

Appellant acknowledges that the trial court gave the admonishments which are required by Tex. Code Crim. Proc. art. 26.13(a), but argues that his plea of guilty was not free and voluntary as required by article 26.13(b) because the trial court failed to inform him he would not have the right to appeal.

Article 42.12, Sec. 5(a), provides that a judge who places a defendant on deferred- adjudication probation shall inform him of the possible consequences of this type of probation as set forth in subsection (b) which states:

On violation of a condition of [probation] under subsection (a), the defendant may be arrested and detained . . . . The defendant is entitled to a hearing limited to the determination by the court of whether to proceed with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred."

(Emphasis added.)

At trial on August 5, 1993, the court explained to Appellant the things he would be expected to do while on probation. Appellant was told that he would be subject to the entire punishment range if adjudicated; that the punishment range is the same as for the offense of murder; that if he violated any term or condition of probation for those ten years, he was looking at up-to-a-life sentence in the penitentiary. Thereafter, the State filed a motion to revoke Appellant's probation. Appellant pled "true" to the violation of using cocaine.

The trial court, on November 24, 1993, continued Appellant on probation but ordered him to report to the Judicial Intervention Drug Treatment Facility, and warned Appellant if he had another positive-drug test before a bed became available at the Facility, he would be re-arrested, his probation revoked, and he would be sent to the penitentiary for "possibly a long, long time." One week later Appellant tested positive for drugs and on January 4, 1994, a hearing was held on a second motion to adjudicate on January 4, 1994. At this hearing, the trial court revoked Appellant's probation and sentenced him to 35 years in prison. At the same hearing, the trial court sentenced Appellant to ten years in another case he had pending in which he had previously pled guilty.

Appellant pled guilty without an agreed recommendation from the State. He waived his right to trial by jury and pled guilty to the offense of delivery of less than 28 grams of cocaine. The State introduced Appellant's signed-sworn-judicial confession and stipulation of evidence.

At the time Appellant pled guilty, he was unaware the judge would place him on deferred adjudication probation. He understood that the full range of punishment was available to the court. Yet he pled guilty anyway, and received the admonishments required under Tex. Code Crim. Proc. art. 26.13(a). If at this point the trial judge had given Appellant straight penitentiary time, he would have complied with all the admonishments required for a guilty plea. Yet, because he gave Appellant deferred adjudication probation, Article 42.12, Sec. 5(b), requires further admonishments. When Appellant pled guilty, he was not aware that he would receive the benefit of deferred adjudication probation. The plea that was voluntary minutes before did not become involuntary simply because the judge gave Appellant the unexpected gift of deferred adjudication.

Under the record in this case, we hold that the admonitions given Appellant "substantially complied" with the requirements of a free and voluntary plea of guilty. The burden then shifted to Appellant to show that he entered the plea without understanding the consequences of his action and was thus harmed. Robinson v. State, 739 S.W.2d 795, 801 (Tex. Crim. App. 1987). We hold that the presence, or absence, of the information in Article 42.12, Sec. 5(b) (i.e. no appeal may be taken from the determination to adjudicate), had no effect on the voluntariness of Appellant's felony guilty plea in the non-plea-bargain situation here.

Further, Appellant has not alleged or shown any cognizable harm as a result of the trial court's failure to admonish him that he could not appeal. The failure to advise Appellant that he could not appeal, under this record, did not render Appellant's plea of guilty other than free or voluntary, as required by Article 26.13(b), and such failure to advise Appellant is harmless under Tex. R. Crim. P. 81(b).

Appellant's point is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 8, 1995

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