Burnett v. State
| Citation | 88 S.W.3d 633 |
| Decision Date | 30 October 2002 |
| Docket Number | No. 860-01.,860-01. |
| Parties | Devin Lynne BURNETT, Appellant, v. The STATE of Texas. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Robert N. Udashen, Dallas, for Appellant.
Pamela Moore Lakatos, Asst. DA, Denton, Matthew Paul, State's Attorney, Austin, for State.
We granted the State's Petition for Discretionary Review to determine whether the court of appeals properly reversed appellant's conviction because the trial judge failed to admonish appellant regarding the punishment range for his offense, as required by Code of Criminal Procedure article 26.13,1 before accepting appellant's guilty plea.2 Burnett v. State, No. 02-00-00171-CR, slip op. 4 (Tex.App.-Fort Worth Mar. 15, 2001)(not designated for publication). The failure to admonish appellant regarding the range of punishment was clearly error. There is, however, nothing in the record that supports an inference that: 1) appellant was unaware of the consequences of his plea; or 2) the trial judge's failure to admonish him misled appellant into pleading guilty because he did not know the applicable range of punishment. To the contrary, this record is replete with statements concerning the applicable range of punishment. Thus, the error in this case was harmless. Accordingly, we reverse the court of appeals' judgment and remand for consideration of appellant's remaining points of error.
A Denton County grand jury indicted appellant, Devin Lynn Burnett, for delivery of a controlled substance, specifically, more than one gram but less than four grams of cocaine. In an enhancement paragraph, the State alleged a prior felony conviction for Burglary of a Habitation.3 The record includes the following exchange from appellant's arraignment:
THE COURT: If you will arraign the Defendant, State....
([THE STATE] read aloud the indictment.)
([THE STATE] read aloud the enhancement paragraph.)
During that process, you would have [defense counsel] there with you who could confront and cross-examine witnesses brought against you. You could call any witnesses that you wanted to call. You could testify or you could not say anything and remain silent and require the State to prove it. And by pleading guilty here, you are giving up all of those rights during the guilt/innocence phase.
You understand that?
Am I right when I say that you want a jury to set that punishment?
State has made a plea offer in this case; is that right?
After empaneling the jurors who would assess appellant's punishment, the trial judge accepted appellant's plea of "guilty" to the charged offense and "true" to the enhancement paragraph. The jury then heard the evidence and deliberated a little less than four hours before returning its verdict: 85 years' confinement in TDCJ — Institutional Division and a $10,000 fine.
Appellant challenged his conviction, alleging, inter alia, that the trial judge erred when he failed to admonish appellant according to article 26.13(a)(1). After determining that the trial judge had indeed erred by failing to admonish appellant regarding the punishment range for his offense in accordance with article 26.13(a)(1) the court of appeals applied Texas Rule of Appellate Procedure 44.2(b) to determine whether the error affected appellant's substantial rights. Stating that "[n]othing in the record clearly indicates that appellant was aware of the consequences of his guilty plea ... It is our opinion that appellant's willingness to accept the 12 year plea offer could have been affected had he known the maximum range of punishment." The court of appeals therefore reversed appellant's conviction and remanded the case for a new trial.
The arraignment colloquy quoted above suggests that the trial judge made a good faith attempt to discern whether appellant understood the consequences of his plea. The fact remains, however, that the trial judge did not comply, even "substantially,4 with article 26.13(a)(1), in that he wholly failed to admonish appellant regarding the applicable range of punishment. As this Court recognized in Cain v. State, "To claim that an admonishment was in substantial compliance even though it was never given is a legal fiction.5 Therefore, we agree with the court of appeals that the trial judge clearly erred when he failed to admonish the defendant regarding the range of punishment. We disagree, however, with the court of appeals' analysis and conclusion on the harm issue.
Failure to admonish a defendant on the direct consequences of his guilty plea is statutory rather than constitutional error.6 Undoubtedly, a critical direct consequence of a guilty plea is the maximum punishment that can be assessed for the offense to which the defendant proposes to plead guilty.7
Courts of appeals must conduct the harm analysis of statutory errors, as a species of "other errors," under Rule 44.2(b), disregarding the error unless it "affect[ed] [appellant's] substantial rights."8 For claims of non-constitutional error, we, like the Supreme Court, hold that "a conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had `substantial influence' on the outcome of the proceeding."9 Put another way, if the reviewing court has "a grave doubt" that the result was free from the substantial influence of the error, then it must treat the error as if it did.10 "Grave doubt" means that "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error."11 Thus, "in cases of grave doubt as to harmlessness the petitioner must win."12
Neither the appellant nor the State have any formal burden to show harm or harmlessness under Rule 44.2(b).13
14
Thus, a reviewing court must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him of the punishment range.15 The court of appeals cited and nominally relied upon Anderson v. State16 for the proper harm analysis to conduct. In fact, the court of appeals inverted the first part of the required analysis, stating essentially that the record must clearly show that appellant knew the consequences of his plea. The correct test is just the opposite — to warrant a reversal on direct appeal, the record...
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...influence of the error, then [we] must treat the error as if it [had a substantial influence on the outcome]." Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). Stated another way, "in cases of grave doubt as to harmlessness the petitioner must win." Id. at 638 (quoting O'Neal v. M......
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