Kenneth Prater, Jr. v. The State of Texas--Appeal from 3rd District Court of Anderson County

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NOS. 12-02-00120-CR










Appellant Kenneth Prater, Jr. ("Appellant") appeals his sentence of two years of imprisonment in one forgery case and ten years of imprisonment in another forgery case. Appellant presents one issue for review. We affirm.



On July 27, 2000, Appellant was indicted on two counts of forgery in trial court cause number 25472 and four counts of forgery in cause number 25473. On October 3, 2000, Appellant pleaded guilty and was sentenced to two years of imprisonment in cause number 25472 and ten years in cause number 25473. Those sentences were probated for five and ten years, respectively.

On February 8, 2002, the State of Texas filed a "Motion to Revoke Community Supervision" in both cases, alleging that Appellant violated the terms and conditions of his probation. The trial court heard the State's motion on March 15. At the hearing on the motion, Appellant pleaded "true" to five of the allegations in the State's motion, but pleaded "not true" to the allegation that he failed to satisfy the community service condition of his probation. (1) After the court heard testimony from Appellant's probation supervisor and Appellant himself, the court found the allegations in the State's motion true and revoked Appellant's probation. Before Appellant testified, the trial judge did not admonish Appellant about his right not to testify against himself. At the conclusion of the hearing, the trial judge imposed Appellant's original sentence.

In one issue, Appellant appeals his sentences on the basis that the trial court erred when it did not admonish Appellant of the range of punishment and his right not to testify against himself.


Admonishments at a Hearing on a Motion to Revoke Probation

Range of Punishment

A trial court is required to admonish a defendant of the range of punishment attached to an offense before the defendant enters a plea of guilty or nolo contendere. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon 1989). However, the requirements of article 26.13 do not apply in a revocation of probation proceeding. See Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974); Lanum v. State, 952 S.W.2d 36, 39 (Tex. App.-San Antonio 1997, no pet.). In the instant case, Appellant was properly admonished in writing at the time he pleaded guilty. See Tex. Code Crim. Proc. Ann art. 26.13(d). Therefore, the trial court did not err in failing to orally admonish Appellant at the hearing before he entered a plea of true.

Fifth Amendment Right Against Self-Incrimination

Appellant also argues that the trial court erred in failing to advise him of his Fifth Amendment right against self-incrimination after Appellant's attorney called him to testify on his own behalf at the hearing. We disagree.

The Fifth Amendment privilege against self-incrimination, which is binding upon the states through the Fourteenth Amendment, provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . " U.S. Const. amend. V; Reese v. State, 877 S.W.2d 328, 335 (Tex. Crim. App. 1994). A concurrent right exists under the Texas Constitution. Tex. Const. art. I, 10. The purpose of the right against self-incrimination is to prohibit compulsion of testimony which may expose a person to criminal prosecution. Reese, 877 S.W.2d at 335. This right, however, can be waived if done knowingly, voluntarily, and intelligently, and might be done by conscious decisions of trial strategy. See Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim. App.1981); Taylor v. State 474 S.W.2d 207, 211 (Tex. Crim. App. 1971). Appellant does not contend that his testimony at the probation revocation hearing was offered for a limited purpose or was either involuntary or coerced. To the contrary, the reporter's record of the underlying proceeding demonstrates that Appellant's testimony was given while under direct examination by his own counsel. When a criminal defendant voluntarily takes the stand to testify in his own defense, he waives his privilege against self-incrimination. See Ramirez v. State, 74 S.W.3d 152, 156 (Tex. App.-Amarillo 2002, pet. ref'd). Accordingly, Appellant waived his privilege against self-incrimination when he took the stand to testify in his own defense at the probation revocation hearing. Appellant's sole issue is overruled.

The trial court's judgments are affirmed.




Opinion delivered November 20, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.


1. The State alleged in its motions that Appellant failed to (1) report to the Community Supervision Officer, (2) perform community service, (3) pay fines and court costs, (4) pay $50.00 to Anderson County Crime Stoppers, (5) pay a $30.00 supervision fee to the Anderson County Community Supervision and Corrections Department, and (6) pay restitution to the victims.