Williams v. State
Decision Date | 26 April 1989 |
Docket Number | 05-88-00109-C,Nos. 05-88-00108-C,05-88-00110-CR,s. 05-88-00108-C |
Parties | Frederick Dewayne WILLIAMS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Appeals |
Robert Udashen, Dallas, for appellant.
Teresa Tolle, Dallas, for appellee.
Before McCLUNG, BAKER and KINKEADE, JJ.
Frederick Dewayne Williams appeals his conviction of two offenses of aggravated robbery and one offense of theft of property. Williams pleaded guilty to all three offenses. A single jury found him guilty of each offense and found one enhancement paragraph to be true. The jury sentenced him to ninety-nine years confinement and a $10,000.00 fine for each of the aggravated robbery offenses, and ten years confinement and a $5,000.00 fine for the theft offense. Williams contends that the trial court erred in that it: 1) failed to determine whether Williams's guilty pleas were made freely and voluntarily; 2) failed to properly admonish Williams regarding the range of punishment for each of the three offenses; 3) failed to require that Williams personally enter the guilty pleas; and 4) refused the defense attorney's request to make two arguments before the jury. We agree that the trial court's admonishments were insufficient and reverse the trial court's judgment.
Prior to accepting a guilty plea, the trial court must admonish the defendant as to the range of punishment for the offense charged. TEX.CODE CRIM.PROC.ANN. art. 26.13(a) (Vernon Supp.1989). The admonishments insure that the defendant is aware of the consequences of his plea. Whitten v. State, 587 S.W.2d 156, 158 (Tex.Crim.App.1979). The trial court need only substantially comply with the admonishment requirements of article 26.13 unless the defendant shows that he was misled or harmed by the admonishment. Johnson v. State, 705 S.W.2d 154, 156 (Tex.App.--Texarkana 1985, no pet.); TEX.CODE CRIM.PROC.ANN. art. 26.13(c) (Vernon Supp.1989). Failure of the trial court to comply with the provisions of article 26.13 may be raised at any time. Ex parte Taylor, 522 S.W.2d 479, 481 (Tex.Crim.App.1975).
The trial court must determine whether the defendant has entered a guilty plea freely and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); TEX.CODE CRIM.PROC.ANN. art. 26.13(b). However, the trial judge need not ask any certain questions nor follow any formula in order to substantially comply with article 26.13. Richards v. State, 562 S.W.2d 456, 458 (Tex.Crim.App.1977) (op. on reh'g). When the trial judge admonishes the defendant, even if the admonishment is erroneous, substantial compliance is deemed. The burden then shifts to the defendant to show that he entered his plea without understanding the consequences (i.e., the possible punishment) and that he was thus harmed. Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App.1984). If the error in the admonishment affects the voluntariness of the plea, there is no substantial compliance. Johnston v. State, 670 S.W.2d 394, 397 (Tex.App.--Austin 1984, pet. dism'd).
The admonishments must be given by the trial court and not by counsel. Whitten, 587 S.W.2d at 158-59; Murray v. State, 561 S.W.2d 821, 822 (Tex.Crim.App.1977). This requirement is more than a technicality; it is a mandatory requirement of article 26.13. Murray, 561 S.W.2d at 822. The trial court must satisfy itself as to the propriety of the defendant's guilty plea. Defendants should look to the trial court, not the prosecutor, for admonishments. Whitten, 587 S.W.2d at 159. The only admonishments we should consider, therefore, are those given by the trial court. Murray, 561 S.W.2d at 822.
In the case at bar, Williams was charged with three separate offenses and one enhancement paragraph. The trial court was required to admonish Williams regarding each offense as well as the consequences of the enhancement paragraph. The admonishment proceeded as follows:
THE COURT: How does the Defendant wish to plead to this enhancement?
[Defense Attorney]: The Defendant pleads true to the enhancement paragraph.
[Defense Attorney]: Guilty.
THE COURT: And then you plead true to the enhancement account?
[Defense Attorney]: Yes.
*(Whereupon, Mr. Creuzot arraigns the Defendant on the indictment and enhancement paragraph in Cause No. F-87-89855-UI, outside the presence of the jury.)
[Defense Attorney]: True.
*(Whereupon, the Judge arraigns the Defendant on the range of punishment on the theft case outside the presence of the jury.)
THE COURT: You plead guilty to the enhancement account of the indictment?
[Defense Attorney]: Yes.
THE COURT: Bring in the jury ...
*.
The trial judge admonished Williams as to the wrong ranges of punishment on two of the primary offenses and the effects of the enhancement paragraph on...
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