### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00155- CR

He nr y P r inc e , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC-20 04- 3041 684, HO NORAB LE JON N. WIS SER, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N
Af te r a c c e pti nga

pp e lla nt H e nr y Pr inc e ’s gu ilty

ple a , th e dis tr ic t c ourt

a dju dg e d h im g uilty of burg lary

of a ha bitation and imposed a fifte en-y ear prison sentenc e. See Tex. Pen. Code Ann. § 30.02 (West 2003). I n his only point of erro r, Prince ur g es that the c onviction must be rever sed be c a us e the tr ia l c ourt ’s c on fl icti ng a dmo nis hme nts re g a rd ingpunis hme nt r a ise “ g ra ve do ub t” a s to whether the g uilty

plea was k n o wi ng ly

and voluntarily

made. We will overr

ule this contention and aff irm the conviction.

Following his arre st in S eptember 2004, Prince wa s found incompetent to stand trial and committed to the Austin State Hospital. On J anuar y 5, 2005, Prince re appea

red in district cour

t and was at that time deter

mined to be competent. Prince tol d the court that he was not g uilty of burg lary . Be fore continuing the cause to a later date, the c ourt corr ectly

advised Prince that t h e p enalty rang e for the
c ha rg e d o ff e ns e wa s tw o to tw e nty

y e ars .2 Prince re turned to cour

t on F ebrua

ry 10, 2005, and ente red a

plea of g uilty . I ntroduce d
a s c ou rt ’s e xhibi t on e wa s a

wr itt e n a dmo nis hme nt a nd jud ic ia l c on fe ssi on

sig ne d b y

Pr inc e and

his att o rn ey . By

his init ials on this form, Prince indicate d that he had be en told and under stood that the offe nse wa s a sec ond deg ree felony car rying a punishment of two to twe nty y ear s in pr ison a nd a fine of up to $10,000. Prince a lso told the court that he had disc ussed the docume nt with his attorney and understood it. After

Prince e ntere d his p l ea, how ever , the cour t asked him if he unde rstood that the rang e of punishment w as two to ten y ear s. Prince said he understood. Prince ’s counse l did not object or ask the court to corr ect its misstatement of t he punis hment rang e. The court ac cepte d the plea a nd
re s et t h e c au s e f

o r s en t en ci n g. S en t encingwas he ld on Febr uary 22, 2005. After

hear ing br ief testimony by the
arr e sti ng of

fi c e r and re vie wi ng the pr e se nte nc e re po rt , th e c ourt a sse sse d p un ish me nt at f if te e n y e ars ’ imp ri so nme nt. Pr inc e a c kn ow le dg e s b e ingtol d th e c or re c t pu nis hme nt ra

ng e on F e br

ua ry 5. He a lso
conce des that he w as prope rly admonished in writing pursuant to ar ticle 26.13. Tex. Code Crim. P roc. Ann. ar t. 26.13(a)( 1), (d) (West Supp. 2005). Neve rtheless, he urg es that the trial c ourt’s misstatement of the punishment ra

ng e af ter he pleade d g uilty

—and his reply

to the court at th at time that he understood the punishment ra ng e—ra ises a ser ious question as to whether he t ruly appre ciated the punishment he risked by

pleading g uilty without a plea barg ain. He asser ts that the court’s misstatement of the punishment ra

ng e wa s nonconstitutional e rr o r t h at s hould be ana ly zed for har

m in the manner descr ibed in Bu rn e tt v . S

tate , 88 S.W .3d 633, 637-39 (Te x . Crim. App. 2002). I n Bu rn e tt , t h e t r i a l co u rt t o t al l y fa i l edt o ad m o n i s h t h e d ef en d an tre gar d i n g t h e r an ge of punishment. The c ourt wrote:3

[I ]f th e r e v ie w in g c o u rt h a s “ a g r a v e d o u b t” th a t th e r e s u lt w a s f r e e fr om the sub s t an t i al i nfluenc e of the err or, then it must treat the e rror as if it did. “Gra

ve do ub t” me ans that “ in t

he jud g e ’s min d, the ma

tte r i s so e ve nly ba lanc e d that he fe e ls himself in virtual equipoise as to the ha rmlessness of the e rror .” Thus, “in cases of g rave doubt as to harmlessness the pe titioner must win.”
Id
. at 6 3 7 -3 8 (q u o t i n g United States v. Lane , 474 U.S. 438, 449 (1986) and O’Neal v. M cAninch , 513 U.S. 432, 433-36 (1995)) (footnotes omitted). The court we nt on: [T] o war rant a reve rsal on dire ct appe al, t h e re co rd m ust support an infer ence that a pp e lla nt did not know th e con se qu e nc e s o f h is p le a . Re vie wi ngc ourt s mu st examine the entire r ecor d to d et er m i n e whether, on its face , any thing in the r ecor d s u gges t s t h at a d ef

en d an t d i d n o tkn o w t h e c o n s eq u en ce s o f h i s p l ea
— h er e, t h e r an ge of punishment. . . . The reviewing court a lso may simult aneously

consider r ecor d fa cts from which one would rea sonably infer that a def

endant did know the conseque nces of

his plea or, in this case , was a ctually awa re of the ra

ng e of punishment. . . . I f, aft er a co n s cientious examination of the rec ord, the re viewing c ourt is l e ft wi th “ g ra ve do ub t” on

the matte r, the e rr or

is n ot h arm le ss.
Id . at 638-3 9 (fo ot no te s o mitte d) . T he c ourt of c ri min a l a

pp e a ls d e te rm ine d th a t th e re c or d a s a whole demonstrated that the def endant knew the rang e of punishment, a nd there fore the trial court’ s failure to admonish him as to the punishm ent ra ng e wa s harmless er

ror. Id . at 641. I n his brief, Prin ce argues that “[t] here is no reason to be lieve that by virtue of the
corr ect a dmonishments provided at the January 5 arrai gn m ent and on the written plea f orm, [he] should have known that the trial court’s rec itation of a ten y ear maxi mum wa s incorre ct. I n fac t, [ he] aff irmed that he unde rstood t h e t en y ea r m axim um to be corr ect upon inquiry by the trial cour

t.” Prince c oncludes that “ the pre sent rec ord leaves g rave doubt as to whether[he] was a war e of the
corr ect r ang e of punishment” a nd there fore the conviction must be re verse d.4 A consc ientious review of the re cord le aves little doubt, much less g rave doubt, that appellant kne w the ac tual rang e of punishment for t h i s o ffe nse. The r ecor d ref lects that bef

ore
an n o u n c i n g h i s p l e a , P r i n c e h a d t w i c e b e e nt o l d

t h e c o r r e c t r an g e o f p u n i s h m e n t : a tt h e F e b r u ar y 5 he ari ngand

in t he wr itt e n a dmo nis hme nts . T hu s, the re c or d s up po rt s th e inf e re nc e that at th e tim e he ple a de d guil ty , Prin c e un de rs too d that he co uld re c e ive up to t we nty y e ars in p ri so n. An d b e c a us e the cour t’s misstatement of the punishment rang e wa s made af ter Prince e ntere d his guilty plea, albeit bef o re t h e p lea wa s acc epted, ther e is no basis in the rec ord for suspecting that the mis state me nt i nd

uc e d th e ple a . T he re is n o r e a so n to be lie ve that Pr inc e wo uld have wi thd

ra wn his g uilty plea if he had been told the corr ect punishment r ang e—for the third time—after

the plea w as enter ed. Under

the circ umstances shown, w e conclude that the t rial court’s misstatement of the punishment rang e after the g uilty plea was enter ed did not mislead or har m Prince. Ther efor e,
we ove rrule the point of err or and a ffirm the judg ment of convic tion.

__________________________________________ Be a Ann Smith, J ustice Be fore J ustices B . A. Smith, P atterson a nd Pury ear Affir med Filed: August 4, 2006 Do No t Pu

bli sh