Taylor v. State

• Decision Date: 17 September 1980
• Docket Number: 62926,No. 1,Nos. 62924,62925,s. 62924,1
• Citation: 610 S.W.2d 471
• Parties: William Randy TAYLOR, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 471

610 S.W.2d 471

William Randy TAYLOR, Appellant, v. The STATE of Texas, Appellee.

Nos. 62924, 62925, 62926.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 17, 1980.

On Rehearing Feb. 4, 1981.

Second Motion For Rehearing Denied Feb. 18, 1981.

Norman J. Hoppenstein (Court-appointed on appeal), Roland H. Hill, Jr., Fort Worth, for appellant.

Edward J. Tracy, Jr., Fort Worth (Court-appointed), for appellant on rehearing.

Tim Curry, Dist. Atty., William Kane, Steven Chaney & Charles Roach, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Alfred Walker, Asst. State's Atty., Austin, for the State on rehearing.

Before ONION, P. J., and PHILLIPS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Indicted for the offenses of delivery of marihuana (Cause No. 62,924), delivery of methamphetamine (Cause No. 62,925) and delivery of a controlled substance named as "cocaine" (Cause No. 62,926), appellant entered a plea of guilty to the charge in Cause No. 62,924 and the jury assessed punishment at confinement in the Texas Department of Corrections for ten years. Having entered pleas of not guilty in Cause Nos. 62,925 and 62,926, appellant was found guilty by the jury of same and assessed punishment in each cause of fifteen years imprisonment.

Original court appointed counsel filed a brief in all three cause numbers in which he stated that the instant appeals are frivolous, but we found that such brief was not in compliance with the dictates of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) or Currie v. State, 516 S.W.2d 683 (Tex.Cr.App.1974) as interpreted in High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978), and abated the appeals so that appellant could be afforded the effective assistance of counsel on appeal.

Thereafter, the same court appointed counsel filed a single brief embracing all causes which presented but a single ground of error relating to the failure of the trial court to charge the jury on entrapment in the "cocaine" delivery case. As the per curiam panel opinion of March 19, 1980 pointed out, this brief contained only one reference to the record and cited but one case in support of the argument timidly advanced. Accordingly, the panel again abated the instant appeals and remanded the causes to the trial court with instructions to remove that court appointed counsel and provide the appellant with the effective assistance of counsel on appeal. See Anders v. California, supra; Currie v. State, supra. See also Passmore v. Estelle, 594 F.2d 115 (5 Cir. 1979) and CLINTON and WICE Assistance of Counsel in Texas, 12 St.Mary's L.J. 1, 38-41 (1980).

Represented by new court appointed appellate counsel, appellant advances two grounds of error contending that the trial court erred in accepting his plea of guilty in Cause No. 62,924 because he was not admonished as to the proper range of punishment as required by both Article 26.13, V.A.C.C.P. and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and, further, that he was denied the reasonably effective assistance of counsel guaranteed by both the Sixth and Fourteenth Amendments to the United States Constitution. Additionally, in the interest of justice, see Article 40.09(13), V.A.C.C.P., we will consider a matter not raised; that is validity of the indictment in Cause No. 62,926. For reasons about to be developed we will affirm the methamphetamine case but reverse the marihuana and "cocaine" convictions.

In ground of error number one, complaint is made that the trial court erred in accepting appellant's plea of guilty in the delivery of marihuana case since he had not been properly admonished as to the prescribed range of punishment for such offense. The record reflects that after appellant entered his plea of guilty, the trial court informed him, inter alia, that the applicable range of punishment for the offense of delivery of marihuana was imprisonment in the state penitentiary for no less than two nor more than twenty years. Of course the applicable range for this offense, a felony of the third degree, is imprisonment in the Texas Department of Corrections for no less than two nor more than ten years. See V.T.C.A. Penal Code, § 12.34. Though improperly admonished as to the possible maximum punishment, appellant's eventual punishment of ten years confinement was assessed within the correct punishment range by a jury that was correctly charged on the matter. In former times without a showing that an accused was misled to his detriment by the strength of the trial court's faulty admonition reversible error did not attend the admonishment. ¹ Ex parte Beiersdorf, 532 S.W.2d 632 (Tex.Cr.App.1976); see also Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974) and Jorden v. State, 500 S.W.2d 117 (Tex.Cr.App.1973). With the 1975 amendment, note 1, in the margin ante, as the Court has recently pointed out in Whitten v. State, 587 S.W.2d 156, 158 (Tex.Cr.App.1979), when we review a challenged admonishment "the question of substantial compliance, not harmless error, is the primary focus of our analysis" because "an affirmative showing of prejudice by appellant is unnecessary if there has been no substantial compliance with the statute," id., at 158.

Narrowly, then, what we must decide here is whether an admonishment that states a range of punishment by confinement that attends a second degree felony offense substantially complies with the statutory requirement of Article 26.13(a)(1) that the trial court shall admonish the accused of the range of punishment "attached to the offense" ² that is a third degree felony and to which he has tendered a plea of guilty.

The offense of delivery of marihuana in this case was alleged to have been committed May 18, 1978 and the plea was entered February 13, 1979. Thus, Article 26.13, supra, as it had again been amended in 1977 ³ was the controlling admonishment mandate extant when appellant pled guilty to the marihuana offense. It required admonishment in two particulars: the attached range of punishment and that a recommendation as to punishment is not binding on the court. Since the punishment was to be assessed by the jury, the second particular is not germane and was naturally not made a part of the admonishment that was given. We are left, then, with only the erroneous range of punishment.

In our judgment, when the only matter about which the accused is to be admonished is the range of punishment, an admonishment that states a range for an offense one grade higher than the offense on trial does not substantially comply with Article 26.13(a)(1). It is still the rule that a "total failure" by the trial court to admonish as to punishment is reversible error whether the plea hearing is before the court as in Murray v. State, 561 S.W.2d 821 (Tex.Cr.App.1977), or before a jury on a plea of guilty, as in Fuller v. State, 576 S.W.2d 856 (Tex.Cr.App.1979), and in the latter case the error is not cured by a charge to the jury that correctly states the range of punishment, Stewart v. State, 580 S.W.2d 594 (Tex.Cr.App.1979). ⁴

There is no principled distinction between total failure to speak of punishment and stating a range of punishment which is not applicable to the offense on trial. The function of the admonishment exercise is to assure that facet of due process which requires that the plea of guilty that bases a conviction for a penal offense be "voluntary in the constitutional sense," Henderson v. Morgan, 426 U.S. 641, 646, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976). ⁵ As Presiding Judge Onion discerned in Walker v. State, supra, at 718 (Opinion concurring in part and dissenting in part), a voluntary, knowing and understandable plea includes "comprehension not only as to the nature of the charge, but also as to the penalty which can be imposed." The constitutional requirement presumes ignorance of such matters by the pleading accused; it is satisfied by a complete correct admonishment of the facts of such matters. If it were otherwise the mandate admonishment could be waived or may be avoided by a showing that the accused in truth and in fact knew of the applicable range of punishment at the time he entered his plea. But neither will do for the real purpose of the admonishment is not to test the knowledge and understanding that the accused may have somehow acquired before appearing before the court; but, through the solemnity and simplicity of a process that imparts to the accused the absolute verity of the matters stated, to leave no room for doubt about it.

While not analyzing the admonishment procedure to this extent, the Court in Borrego v. State, 558 S.W.2d 1 (Tex.Cr.App.1977) came to the same conclusion we reach albeit in the different circumstances disposition of the case was necessarily different. Thus in a plea hearing before the trial court, which was also to assess punishment, the accused was admonished of the range of punishment for a first degree felony instead of the range for a second degree felony the offense being unlawful possession of heroin, a second degree felony. Implicit in the reversal of the judgment of conviction is a clear determination that the trial court had erred in admonishing the accused "of the range of punishment attached to the offense" of unlawful possession of heroin. ⁶ Also significant is that the Court did not look around for a showing by appellant that he had been "misled or harmed" by the faulty admonishment. ⁷

We sustain this ground of error as to Cause No. 62,924, the marihuana case.

In ground of error number two, appellant contends that he was denied the effective assistance of counsel when his trial counsel enabled the State to impeach him with evidence of two prior arrests for possession of marihuana and burglary. After the jury had found appellant guilty of delivery of both "cocaine" and methamphetamine, appellant took the stand during the punishment phase of the...