Empree Hemphill v. The State of Texas--Appeal from Crim Dist Ct 5 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-143-CR

EMPREE HEMPHILL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 5

Dallas County, Texas

Trial Court # F94-42928-L

O P I N I O N

Appellant Hemphill appeals from his conviction for aggravated robbery for which he was sentenced to life in the Texas Department of Criminal Justice.

On February 13, 1995, Appellant waived a jury and pled guilty before the court to aggravated robbery. The trial court found him guilty and sentenced him to life in prison.

Ricky McQuagge, the complainant, testified that on May 1, 1994, he was working in a Dallas convenience store. At closing time Appellant and two others entered the store. The three men had pistols and demanded money. Four hundred dollars was taken. Appellant was identified as one of the gunmen. Appellant shot McQuagge as he was leaving the store.

Appellant testified that he and the others entered the store on the night of the robbery. He said he shot the complainant because someone yelled, "he got a gun," and that he "shot him out of fear." The trial judge found Appellant guilty and sentenced him to prison for life.

Appellant changed lawyers and filed a motion for a new trial. He testified at a hearing on same that his lawyer had told him, prior to trial, that he was going to look into the court giving him probation; that it was Appellant's understanding from his lawyer that if he got some time, it would not be much; and that, based on his understanding, he finally decided to plead guilty. Appellant's motion for a new trial was denied.

Appellant appeals on one point of error: "The plea of guilty was not intelligently and voluntarily entered into by Appellant."

The record reflects that Appellant waived a jury and pled guilty to aggravated robbery before the court. The trial judge asked Appellant if his plea was freely and voluntarily made, to which he replied, "yes, sir." The court then asked Appellant, "you've talked this over with your lawyer and this is what you want to do about your case?", to which Appellant replied, "yes, sir."

The court then stated: "There is no plea bargain in this case," and then asked Appellant, "do you understand that I am not going to be bound to do anything that either side asks me to do in other words, I don't have to do what the State asks me to do and I don't have to do what you ask me to do. Do you understand that?", to which Appellant replied, "yes, sir."

The court further advised Appellant that if he was found guilty he could not receive probation because this was an aggravated robbery, and asked Appellant, "do you understand that I could not place you on probation?", to which appellant replied, "yes, sir."

There is no showing that Appellant's guilty plea was involuntary. Appellant admitted he was pleading guilty freely and voluntarily. Prior to accepting the guilty plea, the court admonished Appellant in accordance with article 26.13, Texas Code of Criminal Procedure. Additionally, Appellant acknowledged he received written admonitions which contain the admonishments required by article 26.13. Further, Appellant acknowledged that he understood the range of punishment for his offense.

The record conclusively establishes that Appellant's plea was entered into freely and voluntarily, and that the trial court fully complied with article 26.13. Smith v. State, 857 S.W.2d 71 (Tex. App. Dallas 1993, pet ref'd).

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 January 10, 1996

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