Harrison v. State
| Decision Date | 20 February 1985 |
| Docket Number | No. 110-84,110-84 |
| Citation | 688 S.W.2d 497 |
| Parties | Richard Lee HARRISON aka Richard Lee Vaughn, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
David R. Sivertsen, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and Eleanor Montague McCarthy, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was charged by indictment with having committed three aggravated robberies. Appellant, a juvenile at the time of the alleged offenses, was properly certified as an adult. After some plea negotiations, appellant pled guilty to count three of the indictment; the State, in turn, dismissed counts one and two and 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 Court of Appeals held that the trial court had failed to properly admonish appellant insofar as appellant's eligibility for probation was concerned. See Art. 42.12, sec. 3f(a)(1)(D), V.A.C.C.P. Harrison v. State, 663 S.W.2d 120, (Tex.App. Houston 1st 1983). The State's (Harris County District Attorney) Petition for Discretionary Review was granted to determine the propriety of the Court of Appeal's holding. We reverse the Court of Appeals and affirm the trial court.
The trial court at the time of the guilty plea inquired into the existence of a plea bargain and admonished appellant in accordance with Art. 26.13., V.A.C.C.P. While we agree that the trial court erred in admonishing the appellant as regards probation, we find that appellant has failed to show he was misled to his detriment as required by Art. 26.13(c), supra. Error, if any, was harmless.
Although no motion for probation had been filed by appellant 1, the trial court proceeded to admonish on probation as follows:
The trial court then accepted appellant's plea; a properly executed stipulation of evidence was entered into the minutes of the court and the court entered a finding of guilt. Sentencing was delayed pending a pre-sentence investigation (PSI) report.
At sentencing on November 5, 1982, the trial court noted he had reviewed the PSI and asked the appellant and the State if either had any corrections or additions to make to the report; both parties stood mute. No arguments were made and the court sentenced appellant to ten years and a day. No motion for new trial was filed and this appeal followed. Finally, we note that other than the court's statement ante, the only mention of probation, prior to the contention on appeal, appears in the PSI where a hearsay statement by appellant indicates what he would do if granted probation. The PSI was not offered into evidence, although it appears in the record.
Firstly, we reject the State's analysis that the trial court did not improperly admonish appellant as to probation since at the time of the admonishment no finding of guilt had been entered and the court could have granted deferred adjudication. See Art. 42.12, 3d(a) V.A.C.C.P. Such an argument requires pure speculation, for the record is devoid of any reference, any indication that any party, much less the trial court, was considering deferred adjudication.
Secondly, the State argues, along the same vein, that the trial court could have found appellant guilty of the lesser included offense of robbery, in which case appellant would have been eligible for probation. This argument also calls for pure speculation for which there is no support in the record. In fact, the clear inference of the trial court's comments is that he was admonishing appellant on the consequences of accepting his plea of guilty to aggravated robbery.
As a general proposition, of course, a trial court has no duty to admonish as to the availability of probation. Shields v. State, 608 S.W.2d 924 (Tex.Cr.App.1980); Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1969).
However, this Court has previously found error where a trial court improperly admonishes as to probation when a defendant is ineligible and it is apparent from the record that the defendant is seeking probation. See Jones v. State, 596 S.W.2d 910 (Tex.Cr.App.1980); Lewis v. State, 630 S.W.2d 809 (Tex.Cr.App.1982); West v. State, 661 S.W.2d 305 (Tex.Cr.App.1983).
The Court of Appeals relied upon Ramirez v. State, 655 S.W.2d 319 (Tex.App.--Corpus Christi 1983, no P.D.R.) which held that it was error to advise a defendant that probation was discretionary when in fact the offense for which he was pleading guilty was statutorily excluded and probation could not be granted.
The reliance of the court of appeals on Ramirez, supra, is misplaced. While 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, the Ramirez court noted that such is error only when it is apparent that a defendant is affirmatively seeking probation and, as in Ramirez, the record is clear that the defendant is pleading guilty in anticipation that he may receive probation. The record in this case does not support a finding that appellant was affirmatively seeking probation and Ramirez is therefore inapplicable.
We believe this holding to be consistent with Art. 26.13(c), supra, which provides that "substantial compliance by the court 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."
This is also consistent with this Court's prior holding that an admonishment, even though incomplete, is a prima facie showing of a knowing, voluntary plea of guilty and that 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. Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App.1980, en banc.)
We find that the appellant utterly failed to show any reliance on the trial court's misstatement of the availability of probation. As noted ante, the only reference to probation, other than the court's admonishment, occurs in a hearsay statement in the PSI which was not offered into evidence. Thus, there is no support in the record for appellant's assertion in his brief that he was expecting probation or was misled by the court's erroneous admonishment. See Beck v. State, 573 S.W.2d 786 ()
No motion for probation was filed prior to trial that would have put the court on notice that appellant believed he was eligible for probation. Finally, no protest was made by the appellant, either at sentencing or by the filing of a motion for new trial alleging an involuntary plea. In the state of this record we cannot find that the appellant has met his burden in showing he was harmed or misled by the incorrect admonishment of the trial court. 2
The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed.
It seems to me that what the trial court and parties did in this cause hews so closely to contemplations of the Adult Probation, Parole and Mandatory Supervision Law, Article 42.12 V.A.C.C.P. and other procedural statutes, that criticisms leveled at one or the other are wide the mark.
At the outset, however, it should be noted that the court of appeals seems to have construed the ground of error to be "that the trial court erred in telling him, after he had been adjudged guilty, that probation of his sentence was a matter for the court's discretion." 1 Harrison v. State, 663 S.W.2d 120, 121 Tex.App.--Houston (1st) 1983. If that were the case, chances are it would not be in this Court.
Pursuant to Article 26.13, V.A.C.C.P., that "[p]rior to accepting a plea of guilty ... the court shall admonish the defendant" of the matters therein prescribed, the trial judge did just that, albeit not in the precise order of the statute. The judge inquired of appellant if he were prepared to enter a plea to the charge of aggravated robbery as contained in the third count of the indictment; appellant responded affirmatively, and when asked how he pleaded, answered "guilty." Consistent with ascertaining that the plea was "free and voluntary," the judge engaged a colloquy with appellant that included the following:
The judge examined "the plea papers" and in line with Article 26.13(a)(2) had appellant confirm that the parties proposed to request the court to order a presentence investigation report; the judge learned from the prosecutor that there would not be an "agreed recommendation" as to punishment. The court then admonished appellant of the range of punishment attached to the offense to which he was pleading...
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