Stanley Young v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-211-CR

STANLEY YOUNG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-116-C

O P I N I O N

On February 8, 1995, Appellant Stanley Young was indicted for the burglary of a building, a state jail felony. Tex. Penal Code Ann. 30.02 (Vernon 1994). In the indictment the State also alleged that Young had previously been convicted of two felony offenses. As a result of the allegations of the two prior felonies, the State alleged that Young should be sentenced as a habitual offender and that, under section 12.42(d) of the Penal Code, the habitual offender statute, his punishment range was 25 to 99 years, or life. Act of June 14, 1973, 63rd Leg., R.S., ch. 399, 12.42, 1973 Tex. Gen. Laws 908, amended by Act of June 16, 1983, 68th Leg., R.S., ch. 339, 1983 Tex. Gen. Laws 1750; Act of June 19, 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3604.

Following an admonishment from the trial court that such was his punishment range, Young pled guilty to the burglary charge and pled true to the enhancement and habitual allegations. The court accepted his pleas and, in accordance with a recommendation from the State, sentenced him to 25 years of confinement in the Texas Department of Corrections - Institutional Division.

Young brings two points on appeal: (1) Article 42.12, section 15, of the Code of Criminal Procedure // mandated that he be sentenced to community supervision notwithstanding his prior felony convictions; and (2) his guilty plea was involuntary because the trial court incorrectly informed him that the range of punishment he faced was 25 years to 99 years, or life, rather than mandatory community supervision. We sustain Young's second point of error and, because our disposition of the second point renders the first moot, we overrule it.

Section 12.35(a) of the Penal Code establishes that, "[e]xcept as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days." Tex. Penal Code Ann. 12.35(a) (Vernon 1994). Section 12.35(c) mandates that an "individual adjudged guilty of a state jail felony shall be punished for a third degree felony" if he used a deadly weapon in the commission of the offense or had previously been convicted of a felony listed in Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(1) (Vernon Supp. 1996). Article 42.12, section 15(a), (d), of the Code of Criminal Procedure requires that "[o]n conviction of a state jail felony, the judge shall suspend the imposition of the sentence of confinement and place the defendant on community supervision" but that the "judge may impose as a condition of community supervision that a defendant submit at the beginning of the period of community supervision to a term of confinement in a state jail felony facility for a term not to exceed . . . one year if the defendant . . . previously [had] been convicted of two or more felonies."

In State v. Mancuso, Nos. 604-95, 811-95 (Tex. Crim. App. February 21, 1996), the Court of Criminal Appeals held that article 42.12, section 15, of the Code of Criminal Procedure controlled over section 12.24(d) of the Penal Code and, therefore, a defendant convicted of a state jail felony must be sentenced to community supervision unless his sentence could otherwise be enhanced under section 12.35(c) of the Penal Code. Id. slip op. at 6. //

Here, there was no allegation that Young used a deadly weapon in committing the burglary for which he pled guilty and there was no allegation that either of the felonies used to enhance his punishment was a felony listed in article 42.12, section 3g(a)(1), of the Code of Criminal Procedure. Therefore, we conclude the court erred in admonishing Young that the range of punishment he faced was 25 to 99 years, or life.

Prior to accepting a plea of guilty, the court shall admonish the defendant, among other things, of the range of punishment attached to the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon 1989). Failure to give required admonishments to a criminal defendant before accepting a guilty plea is fundamental error. Whitten v. State, 587 S.W.2d 156, 158-59 (Tex. Crim. App. 1979) (on rehearing). However, when the record shows that the trial court gave an admonishment that was incomplete or incorrect, there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and thus was harmed. Id.

In a case with facts similar to those here, the Court of Criminal Appeals held that a defendant's guilty plea was not voluntary when the trial court had erroneously admonished the defendant that the range of punishment he faced was two to twenty years and a $10,000 fine instead of two to ten years and a $5,000 fine. Ex parte Smith, 678 S.W.2d 78, 79 (Tex. Crim App. 1984). In the instant case, the trial court's error in its admonishment on the punishment range faced by Young was more egregious than the one the Court of Criminal Appeals found to have rendered the defendant's guilty plea involuntary in Ex parte Smith. See id. Therefore, we conclude Young's guilty plea was involuntary. We sustain his second point of error, reverse the trial court's judgment of guilty, and reverse and remand to the trial court for further proceedings consistent with this opinion.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

Reversed and remanded

Opinion delivered and filed March 6, 1996

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