Price v. State

• Decision Date: 03 November 1993
• Docket Number: No. 037-93,037-93
• Citation: 866 S.W.2d 606
• Parties: John Wiley PRICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 606

866 S.W.2d 606

John Wiley PRICE, Appellant, v. The STATE of Texas, Appellee.

No. 037-93.

Court of Criminal Appeals of Texas En Banc.

Nov. 3, 1993.

James D. McCarthy, Phyllis A. Jackson, Ronald L. Goranson, Dallas, for appellant.

John Vance, Dist. Atty., Sue Korioth, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

The offense is criminal mischief under V.T.C.A. Penal Code, § 28.03(a)(1) and (b)(3), damaging tangible personal property (four billboards advertising cigarettes) resulting in pecuniary loss of $200 or more but less than $750; it is a Class A misdemeanor. The punishment is 75 days confinement in the Dallas County Jail.

I

A

The questions in this cause arise out of the initial deferred adjudication proceeding, memorialized in the Probation Order and Deferral of Adjudication of Guilt dated September 14, 1990. Tr. 37. ¹ The basic issue is intendment of the provision in Article 42.12, § 5(a), V.A.C.C.P. (hereafter " § 5(a)"), that the court "inform the defendant ... of the possible consequences ... of a violation of probation." Our resolving conclusions and holdings are applicable only to deferred adjudication proceedings in misdemeanor cases.

Pursuant to a written plea bargain, when told of the charge and upon being asked for his plea, appellant responded, "I plead guilty, because I am guilty;" he confirmed that he did so "of [his] own free will." The prosecutor outlined the agreement. ² The judge pondered aloud that a Class A misdemeanor calls for punishment "of at least one year;" announcing that the court would follow terms and conditions of the bargain, the trial judge obtained appellant's acknowledgment that a certain instrument was his judicial confession, and received it in evidence; the judge then informed appellant that "this will not be a final conviction unless you violate the terms of this probation during the coming 6 months," and was assured that the assessed fine and costs would be paid that day. S.F. 2-4.

Among other conditions of probation, of course, was that appellant commit no offense against the laws of this State. On February 5, 1991, the criminal district attorney filed his Amended Motion to Proceed with an Adjudication of Guilt. The motion alleged that on or about December 7, 1990, appellant committed two certain offenses involving a single complainant, to wit: criminal mischief and obstructing a highway. The motion to adjudicate was heard in consolidation with a jury trial on an information charging the same criminal mischief offense. Appellant was convicted of criminal mischief; the trial court proceeded to adjudicate guilt of appellant on the earlier criminal mischief charge. See Price v. State, 861 S.W.2d 913 (Tex.Cr.App. No. 0322-93, delivered September 22, 1993) (Clinton, J., dissenting). ³

B

The court of appeals addressed "every issue raised and necessary for final disposition of the appeal." Tex.R.App.Pro. 90. It reversed the conviction for reasons given in deciding the first point of error presented by appellant, that his plea of guilty was not made knowingly and voluntarily in that "the trial court failed properly to admonish him of the possible consequences of a violation of his deferred-adjudication probation" under § 5(a). ⁴ Rejecting opposing contentions on the part of the State that appellant was not "entitled to these admonishments in this misdemeanor case" essentially in light of Empy v. State, 571 S.W.2d 526, at 529-530 (Tex.Cr.App.1978), the court of appeals sustained the first point of error based on three specific conclusions leading to its ultimate disposition reversing the conviction and remanding the cause. Price v. State, 846 S.W.2d 37 (Tex.App.--Dallas 1992).

II

The State now advances three grounds for review that basically attack the three specific conclusions of the court of appeals, viz:

(1) Its error in holding that the admonishment required by § 5(a) is applicable to misdemeanors.

(2) Its error in concluding that any failure to provide to this Defendant an admonishment pursuant to § 5(a) rendered this defendant's plea of guilty involuntary.

(3) Its error in failing to apply to the facts of this case the harmless error standard set out in Tex.R.App.Pro. 81(b)(2).

We will treat those reasons seriatim in subparts A, B and C, respectively.

A

As already pointed out in note 1 ante, but apparently overlooked by all concerned parties, in 1985 the 69th Legislature merged former Article 42.13, the "Misdemeanor Adult Probation and Supervision Law," § 3(d) of which authorized the deferred adjudication proceeding in misdemeanor cases, with Article 42.12 and repealed the former. Since 1985, Article 42.12, § 5(a) is, indeed, the sole authority for any court to grant deferred adjudication in a misdemeanor case.

Without equating "shall inform" with "shall admonish," we hold that § 5(a) is manifestly applicable to pleas of guilty and nolo contendere in misdemeanor cases, particularly where, as here, the accused is personally before the court. ⁵

Therefore, while it conducted an analysis responsive to the theory presented by the State, the court of appeals did not err in its conclusion on this point. The first ground for review is thus without merit.

B

From prior decisions of this Court so holding, the State points out that the trial court need not admonish "even felony defendants regarding probation," citing Ex parte Williams, 704 S.W.2d 773 (Tex.Cr.App.1986) and Harrison v. State, 688 S.W.2d 497, 499 (Tex.Cr.App.1985). State's Brief, at 13 (emphasis in original). However, those decisions were construing Article 26.13; it is applicable only to felony cases. Empy v. State, 571 S.W.2d 526, at 529-530 (Tex.Cr.App.1978). The general rule there is because "range of punishment" does not include probation, the trial judge does not have a mandatory duty to "admonish" an accused as to his eligibility for probation. Ex parte Williams, supra, at 775. On the other hand, the required "informational" function § 5(a) called for, attaches both to felony and misdemeanor cases alike. ⁶

The State says that § 5(a) does not specify when in the plea proceeding the court must inform the accused of the possible consequences of violating probation--whether before the accused answers "guilty" or at some particular point thereafter; the State also emphasizes that § 5(a) does not condition acceptance of the plea on defendant's receiving and understanding the information. State's Brief, at 13.

For his part, appellant asserts the statute "unambiguously provides" the court must inform defendant "before taking the plea that is the predicate to deferred adjudication;" he argues that "the court must not only articulate the information but also inquire whether a defendant makes his plea with a full understanding of the meaning of the plea." Appellant's Brief, at 5-6.

Neither party cites any case directly touching the precise question at issue, nor did the court of appeals; we have not found another dealing with a misdemeanor offense. We must start from scratch, keeping in mind what we must presume the Legislature knew when it amended § 5(a) in 1989, viz: that although most provisions of § 5(a) treat felony and misdemeanor cases similarly, other germane procedural statutes govern preliminary and underlying proceedings differently. Accordingly, we start with a review of relevant basic rules.

Although Article 26.01, V.A.C.C.P., provides that in "all misdemeanor cases punishable by imprisonment, there shall be an arraignment," the legislative purpose was to provide a final opportunity for an indigent accused to obtain appointed counsel. Special Commentary--1963. Thus an accused would be able to respond to functional inquiries of the trial judge and to state his plea upon advice and with aid of counsel. However, the constitutional requirement for appointment of counsel at arraignment or for trial does not apply where from a measure of the seriousness and gravity of the misdemeanor offense the trial judge is satisfied the court will not assess punishment of imprisonment. Moreover, after trial without counsel in a misdemeanor case when only a fine is actually assessed the judgment is not void though the statute include imprisonment as a possible punishment. It follows, therefore, that neither must an arraignment be held in a deferred adjudication proceeding.

Conversely, unlike in a felony plea proceeding, when represented by counsel the accused need not to be present at any stage of a misdemeanor plea proceeding: counsel alone may waive trial by jury and make the plea of guilty for his client; the court may assess punishment, with or without evidence. Article 27.14, V.A.C.C.P. See, e.g., Ex parte Ross, 522 S.W.2d 214, at 222-223 (Tex.Cr.App.1975); Brown v. State, 507 S.W.2d 235, at 238 (Tex.Cr.App.1974) (plea admits every element of offense, thus court not required to hear evidence); Albrecht v. State, 424 S.W.2d 447, at 448 (Tex.Cr.App.1968) (plea acceptable without showing made voluntarily). ⁷

An order deferring adjudication of guilt and placing defendant on "probation" under § 5(a) does not constitute a "conviction," and such "probation" is not the functional equivalent of probation within contemplation of Article IV, § 11-A. Constitution of Texas, and Article 42.12, § 2(b), V.A.C.C.P. But as statutorily authorized, deferred adjudication "probation" is constitutional under Article III, § 1. McNew v. State, 608 S.W.2d 166, at 171-172, and at 176 (Tex.Cr.App.1978, 1980). Failure to admonish a defendant of certain post-revocation and adjudication contingencies, however, does not violate rights to due process and effective assistance of counsel. Id., at 172-173. While it may be "better practice" to admonish as to consequences of deferred adjudication in a felony case, Article 26.13 does not require it. Id., at 177. ⁸ Having reviewed pertinent rules...