Campbell v. State
| Decision Date | 28 February 1979 |
| Docket Number | 58657,No. 3,Nos. 58656,s. 58656,3 |
| Citation | 577 S.W.2d 493 |
| Parties | Michael Anthony CAMPBELL, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Charles W. Yuill, Jr. and James Clark Gordon, Dallas, for appellant.
Henry M. Wade, D. A., John Tatum and John William Booth, Asst. Dist. Attys., Dallas, for the State.
Before DOUGLAS, ROBERTS and DALLY, JJ.
These are appeals from convictions for aggravated robbery (V.T.C.A., Penal Code, Section 29.03) and unauthorized use of a motor vehicle (V.T.C.A., Penal Code, Section 31.07). Appellant entered pleas of nolo contendere and guilty, respectively, to these offenses; punishment was assessed by the court at ten years' and three years' confinement, respectively, to run concurrently.
Appellant contends that the court failed to properly admonish him concerning his respective pleas in violation of Article 26.13, Vernon's Ann.C.C.P. He also challenges the sufficiency of the evidence to support his conviction for aggravated robbery. We overrule these contentions and affirm the judgments of conviction.
These offenses were tried jointly. We find in the record appellant's judicial confessions to the effect that on July 6, 1977, in Dallas County, he stole a car and then several hours later drove to a department store and robbed the store's manager at gunpoint as the manager was leaving the store with the day's receipts. It was stipulated by both parties, however, that the gun used to effectuate the robbery was an "air pistol," commonly known as a pellet gun.
specifically, appellant argues that the court failed to comply with that provision of Article 26.13, supra, which provides that:
The record reflects that in each case pending against him the appellant and his attorney executed an instrument entitled "Plea Bargain Agreement." Both agreements reflect that in consideration for appellant's plea the State would make no recommendation of punishment, except that the agreement in the aggravated robbery case provided that the State would oppose probation for that offense.
Article 26.13, supra, requires that prior to accepting a plea of guilt or nolo contendere, the court shall, among other things, admonish the appellant of the nonbinding effect of the prosecutor's recommendation as to punishment, if there exists such a recommendation. In the present case, the appellant, with advice and consent of his attorney, agreed with the State that his pleas were to be given in consideration for no recommendation of punishment by the prosecutor. Prior to accepting the respective pleas of the appellant, the court inquired if the appellant understood that the plea bargain agreement "has not resulted in any agreed recommendation" and that punishment would be set by the court somewhere within the range provided by law; appellant affirmatively acknowledged that he understood the terms of these agreements. Under circumstances such as these, where no recommendation of punishment has been made by the State and the court admonishes the defendant of that fact, we hold that the court is not further required to literally follow the directives of Article 26.13(a)(2), supra, because to do so would be, at best, a fruitless act.
We conclude that in admonishing the appellant concerning his pleas of guilty and nolo contendere, the court substantially complied with the provisions of Article 26.13, supra, which is all that is required by that statute in the absence of an affirmative demonstration by appellant that he was misled or harmed by the admonishment of the court. Article 26.13(c), supra. See also Kidd v. State, 563 S.W.2d 939 (Tex.Cr.App.1978). We find no merit in appellant's argument; accordingly, this contention is overruled.
Appellant next contends that his conviction for aggravated robbery should be reversed because the evidence is insufficient to support a finding that the air pistol he used to rob the store manager was a deadly weapon. We also find this contention to be without merit in light of the evidence adduced in support of appellant's plea of nolo contendere.
V.T.C.A., Penal Code, Section 1.07(a)(11) defines "deadly weapon" as:
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Table of cases
...Cammack v. State 641 S.W.2d 906 (Tex. Crim. App. 1982) 6:770 Campbell v. State 11 S.W. 832 (Tex. Ct. App. 1889) 11:50 Campbell v. State 577 S.W.2d 493 (Tex. Crim. App. 1979) 3:660 Campbell v. State 614 S.W.2d 443 (Tex. Crim. App. 1981) 6:170, 6:180 Campbell v. State 5 S.W.3d 693 (Tex. Crim.......