Ex parte Williams

• Decision Date: 19 February 1986
• Docket Number: No. 69534,69534
• Citation: 704 S.W.2d 773
• Parties: Ex parte Nelson Earl WILLIAMS.
• Court: Texas Court of Criminal Appeals

Page 773

704 S.W.2d 773

Ex parte Nelson Earl WILLIAMS.

No. 69534.

Court of Criminal Appeals of Texas En Banc.

Feb. 19, 1986.

Frumencio Reyes, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Calvin A. Hartmann and Karen Zellars, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is a post-conviction writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

Applicant pled guilty to aggravated robbery.The trial court assessed punishment at ten years confinement in the Texas Department of Corrections, probated.The trial court later discovered it could not impose probation and reassessed punishment at ten years confinement in the Texas Department of Corrections.In two contentions, applicant seeks release from custody and alleges that his plea of guilty was not knowingly and voluntarily entered because: 1) his attorney failed to inform him of the proper range of punishment, and 2) the trial court did not properly admonish him as to the range of punishment.SeeArt. 26.13(a)(1), V.A.C.C.P.We will address applicant's second ground of relief relating to the trial court's admonishments on punishment and grant relief.

Applicant was indicted for the felony offenses of capital murder, attempted capital murder and aggravated robbery.Trial was set for August 17, 1981.On that day, plea negotiations were initiated and a conference was held in the judge's chambers.Although the State refused to make a specific recommendation, the trial court agreed to place applicant on ten years probation for the offense of aggravated robbery.Applicant then filed an application for probation.Prior to accepting applicant's plea of guilty, the trial court admonished applicant of the following regarding the range of punishment:

THE COURT: You understand the penalty for the offense that you are pleading guilty may be incarceration, locked up, in the Texas Department of Corrections, the penitentiary, for a period of not less than five years nor more than 99 years or for life, plus the payment of a fine not to exceed $10,000.

THE DEFENDANT: Yes, sir.

THE COURT: Knowing that, you still persist that you want to plead guilty?

THE DEFENDANT: Yes, sir.

The trial court continued by admonishing applicant of the various constitutional rights he would be waiving.The trial court then questioned applicant as to his understanding of the plea agreement:

THE COURT: Now, you have filed with this Court--or has he[your defense attorney] told you that there is no agreement on the part of the District Attorney to make a recommendation in this case, except that he has explained to the court the circumstances surrounding the commission of the offense and the evidence that's available to both of you and to the District Attorney in this case, and the Court, based upon that conversation, that information between you and your attorney and the District Attorney, has agreed upon your plea of guilty that the Court is going to give you a sentence of ten years in the Texas Department of Corrections probated for a period of ten years.¹ Do you understand that?

THE DEFENDANT: Yes, sir.

The trial court accepted applicant's plea of guilty and granted him ten years probation.However, on July 13, 1984, almost three years later, in a subsequent hearing to revoke applicant's probation, the trial court discovered it could not grant probation for the offense of aggravated robbery.SeeArt. 42.12, Sec. 3f(a)(1)(D), V.A.C.C.P.The trial court reassessed punishment at ten years confinement in the Texas Department of Corrections.Applicant filed a motion for new trial.The trial court rejected applicant's request.Applicant appealed, but the Court of Appeals dismissed the appeal for want of jurisdiction.Williams v. State, 692 S.W.2d 545(Tex.App.--Houston [14th]1985).

Applicant argues that his plea was not voluntary or knowing because the trial court inaccurately admonished him of the range of punishment available for the offense of aggravated robbery by informing him that probation could and would be granted.We now consider that claim.

Before accepting any plea of guilty or nolo contendere from a defendant, a trial court is required to admonish the defendant of "the range of punishment attached to the offense."Art. 26.13(a)(1), supra.The mandatory language of Art. 26.13(a), supra, creates a duty on the part of the trial court to inform a defendant accurately of the range of punishment prior to a defendant's plea of guilty or nolo contendere so that a free and voluntary plea is assured.This duty is completely separate from defense counsel's duty to provide effective assistance to the defendant.Ex parte Battenfield, 466 S.W.2d 569, 572(Tex.Cr.App.1971).

This Court has long held that the "range of punishment" that must be included in an admonishment under Article 26.13(a)(1), supra, does not include probation.Therefore, the general rule is that there is no mandatory duty for a trial judge to admonish a defendant as to his eligibility for probation.Shields v. State, 608 S.W.2d 924, 927(Tex.Cr.App.1980);Wilson v. State, 436 S.W.2d 542(Tex.Cr.App.1968).In some circumstances, however, a trial court may impose a duty upon itself under Article 26.13(a)(1), supra, to admonish a defendant accurately as to the availability of probation.Harrison v. State, 688 S.W.2d 497(Tex.Cr.App.1985).See alsoRamirez v. State, 655 S.W.2d 319(Tex.App.--Corpus Christi1983), no pet.

In Harrison, supra, a defendant pled guilty to aggravated robbery following plea negotiations with the State.The State made no recommendation as to punishment.The trial court assessed punishment at ten years and one day confinement in the Texas Department of Corrections.The Houston (1st)Court of Appeals held that the trial court failed to admonish the defendant accurately as to his ineligibility for probation.²We acknowledged that the trial court committed error when it misstated the availability of probation.However, we held that the trial court's inaccurate statement on the availability of probation was not reversible error because Article 26.13(c), V.A.C.C.P., provides that "substantial compliance by the court[with the admonishment requirement] is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court."(emphasis in original)Id., at 499.

The defendant in Harrison, supra, offered no evidence that he was expecting probation or was misled by the court's erroneous admonishment.The defendant"utterly failed to show any reliance on the trial court's misstatement of the availability of probation."Id., at 499.Therefore, the defendant failed to meet the detrimental reliance requirement of Art. 26.13(c), supra.We held that defendant's plea was substantially in compliance with Art. 26.13(a)(1) and voluntary.

In Ramirez, supra, a defendant pled guilty to aggravated robbery.The trial court assessed punishment at five years confinement in the Texas Department of Corrections.The Corpus Christi Court of Appeals held that the trial court failed to accurately admonish the defendant as to the availability of probation.³The Court of Appeals reversed the conviction because the defendant had affirmatively sought probation and had pled guilty in anticipation that he would receive probation.

We noted in Harrison, supra at 499, that "the holding in Ramirez may be correct, insofar as it is error to advise a defendant that he may receive probation when he is statutorily ineligible...."We also noted that such error would not make a plea involuntary unless a defendant could also show, pursuant to Art. 26.13(c), supra, that he was unaware of the consequences of his plea and was misled or harmed.

In Ramirez, supra at 321, the Court of Appeals found that the defendant affirmatively sought probation and pled guilty in anticipation that he would receive probation.This finding provided the harm necessary for reversal under Article 26.13(c), supra. ⁴

It is critical to note that in both Harrison, supraandRamirez, supra, the trial courts did not initially have a duty under Art. 26.13(a)(1), supra, to admonish the defendants on the availability of probation.⁵SeeShields, supra;Wilson, supra.However, the trial courts, in both cases, volunteered admonishments which included information as to the availability of probation.Under those circumstances, the trial courts became obligated, pursuant to Article 26.13(a)(1), supra, to provide the defendants with accurate information concerning the range of punishment as it related to probation so that the defendants' pleas would be voluntary and knowing.Otherwise, a trial court would be free to inaccurately admonish on probation, thus misleading a defendant, simply because there was no initial duty to admonish.

It is readily apparent from our holding in Harrison, supra, coupled with the language of Arts. 26.13(a)(1) and (c), supra, that a plea is involuntarily induced: 1) when a defendant shows that the trial court volunteered an admonishment that included information on the availability of probation, thereby creating an affirmative duty on the part of the trial judge to provide accurate information on the availability of probation, 2) when a defendant shows that the trial court provided him with inaccurate information on the availability of probation, thereby leaving the defendant unaware of the consequences of his plea, and 3) when a defendant makes an objective showing that he was misled or harmed by the inaccurate admonishment.

1.Did the trial court volunteer an admonishment that included information on the availability of probation, thus creating an affirmative duty to provide accurate information on the availability of probation?

In the instant case, the trial court, at first, limited his admonition on the range...