Hern v. State, 01-92-00928-CR

• Decision Date: 25 March 1993
• Docket Number: No. 01-92-00928-CR,01-92-00928-CR
• Citation: 849 S.W.2d 924
• Parties: Robert William HERN, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 924

849 S.W.2d 924

Robert William HERN, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00928-CR.

Court of Appeals of Texas Houston (1st Dist.).

March 25, 1993.

K. Ming Roschke, College Station, for appellant.

Bill Turner, Kyle Davis, Asst. Dist. Attys., Brazos County, for appellee.

Before O'CONNOR, DUGGAN and HEDGES, JJ.

OPINION

O'CONNOR, Justice.

This is an accelerated appeal from the denial of habeas corpus relief. We reverse.

On May 14, 1992, the State charged the appellant, Robert William Hern, by indictment with the offense of theft of a firearm over $400. We shall refer to this as the first indictment.

On July 2, 1992, the appellant signed a plea agreement in which he agreed to plead guilty to the offense of "theft of firearm over $400 w/one enh." The State agreed to recommend punishment of 22-years confinement. To conform the plea agreement, the parties expected the State to amend the indictment to include an enhancement paragraph.

On July 8, 1992, the appellant signed a plea of guilty, waiver, stipulation, and judicial confession. This document reflects that the appellant was charged with a "felony of the 2nd degree w/1 enh paragraph." The range of punishment for a second-degree felony is not less than two years and not more than 20. TEX.PENAL CODE ANN. § 12.33(a) (Vernon 1974).

On July 9, 1992, the State re-indicted the appellant. The second indictment bore the same cause number as the first indictment, included the offense of theft of a firearm and, as the parties anticipated, added an enhancement paragraph. The State filed the second indictment with the clerk, but it was not included in the court's file and was not served on the appellant.

On July 10, 1992, the trial court accepted the appellant's plea of guilty. On that date, the court's file contained only the first indictment, dated May 14, 1992, which did not include an enhancement paragraph. At the hearing, the parties, by agreement, amended the appellant's plea documents by crossing out the reference to the enhancement paragraph and by the changing recommended punishment from 22 to 20 years. The trial court, in admonishing the appellant about the punishment range for the offense, told him it was a second-degree felony with a range of punishment of two to 20 years. The offense on the amended indictment was actually a third-degree felony. The court assessed punishment and sentenced the appellant to the recommended 20 years.

The State admits that the trial court's admonishment regarding the range of punishment for the offense was erroneous. Both parties acknowledge that the trial court's sentence of 20 years exceeds the range allowed by statute for a third-degree felony.

Theft of a firearm over $400, without an enhancement paragraph, is a third-degree felony, not, as the trial court admonished, a second-degree felony. TEX.PENAL CODE ANN. § 31.03(e)(4)(C) (Vernon Supp.1993). The punishment range for a third-degree felony is not less than two years and not more than 10 years. TEX.PENAL CODE ANN. § 12.34(a)(1) (Vernon Supp.1993). With the enhancement paragraph, theft of a firearm would have been a second-degree felony. The recidivist statute provides, in part, "If it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony." TEX.PENAL CODE ANN. § 12.42(a) (Vernon 1974).

On July 24, 1992, the trial court, on its own motion and over the objections of the appellant, granted a new trial. On August 11, 1992, the State re-indicted the appellant for the third time, this time with four enhancement paragraphs. The third indictment also bore the same cause number as the original indictment.

The appellant filed a special plea of double jeopardy, and the trial court conducted a hearing. At the hearing, the appellant testified he had been tried for the theft of a firearm over $400 and pled guilty to the charge; he stated that he did not want to be retried for the offense. The trial judge denied his application, stating:

The Court takes judicial notice that the range of punishment was improper. The Court takes judicial notice that [neither] defense counsel nor State said anything to the Court at that time. Therefore, the Court finds that judgment is void from the very moment, and therefore, the reason the Court ordered a new trial was based on a void judgment. The Court denies your special plea of double jeopardy.

The appellant then filed this appeal.

In his sole point of error, the appellant alleges that the trial court erred in "denying application for writ of habeas corpus and allowing State to re-prosecute the same theft for which appellant had already been convicted, sentenced and served part of the sentence in violation of the double jeopardy clause." The appellant contends that the mistake concerning the offense for which he was charged and the appropriate range of punishment pertains to punishment only and that he should not again be placed in jeopardy because of an inadvertent mistake for which he was not responsible. The State, however, contends that because the trial court administered an erroneous admonishment concerning punishment, the appellant's guilty plea was not voluntarily or knowingly made; therefore, the State concludes, the plea and conviction are void and a new trial is required. We disagree with the State.

Before accepting a plea of guilty, the trial court must admonish the defendant regarding, among other things, the range of punishment attached to the offense. TEX.CODE CRIM.P.ANN. art. 26.13(a)(1) (Vernon 1989). The trial court need only substantially comply with the requirements of article 26.13. Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App.1984); Richard v. State, 788 S.W.2d 917, 920 (Tex.App.--Houston [1st Dist.] 1990, no pet.). When the trial court admonishes the defendant, substantial compliance is deemed, even if the admonishment is erroneous. Smith, 678 S.W.2d at 79. When a defendant makes a plea under an erroneous admonishment, it constitutes a prima facie showing that it was a knowing and voluntary plea. The burden then shifts to the defendant to show that he was misled or harmed by the faulty admonishment. Id.; Richard, 788 S.W.2d at 920.

In this case, the State has assumed the burden of challenging the voluntariness of the appellant's guilty plea, an unusual argument for the State. The State maintains that the defendant did not knowingly and voluntarily enter a plea of guilty because the trial court's admonishment on punishment was wrong. We cannot agree with the State. A guilty plea is not rendered involuntary simply because the trial court makes an erroneous admonishment. In fact, the trial court's erroneous admonishment constitutes a prima facie showing that the appellant's guilty plea was knowing and voluntary. To present grounds for reversal, the State must show that the appellant was misled or harmed by the error. The appellant has never alleged that his plea was the product of a plea bargain to which he would not have agreed had he been correctly admonished. Thus, the State's contention that the appellant's plea was void is without merit.

We find it unnecessary, however, to entertain the appellant's claim of double jeopardy. We hold that the trial court lacked the authority to grant a new trial on its own motion.

A motion for new trial is the defendant's prerogative. Ramirez v. State, 587 S.W.2d 144, 145 (Tex.Crim.App.1979). A motion for new trial in a criminal case may be granted only on the timely motion of the defendant. A trial court has no authority to grant a new trial on its own motion. Ex parte Ybarra, 629 S.W.2d 943, 945 (Tex.Crim.App.1982); see Zaragosa v. State, 588 S.W.2d 322, 326-27 (Tex.Crim.App.1979) (after motion for...