In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-10-00219-CR

______________________________

TOMMIE JOE SEAGRAVES, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court No. 26307

 

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Carter
2

O P I N I O N

Tommie Joe Seagraves appeals his conviction for theft greater than $1,500.00 but less than 

$20,000.00—a state jail felony enhanced by two prior felony convictions to the punishment range 

of a second degree felony. The punishment range for a state jail felony is not more than two years 

or less than 180 days’ imprisonment. See TEX. PENAL CODE ANN. § 12.35(a) (Vernon Supp. 

2010). The punishment range for a state jail felony enhanced by two prior felony convictions is 

not more than twenty years or less than two years’ imprisonment. See TEX. PENAL CODE ANN.

§§ 12.33, 12.42(a)(2) (Vernon Supp. 2010). Seagraves argues that he was not properly 

admonished concerning the range of punishment. We affirm the judgment. 

I. Factual and Procedural Background

After signing a written waiver of his right to a jury trial and being admonished in writing on 

the punishment range of a state jail felony, Seagraves pled guilty, without a negotiated plea 

agreement, and signed a written stipulation of the evidence. Seagraves was not informed of the 

possible number of years of imprisonment for the enhanced punishment. 

After the plea of guilty, the trial court directed Seagraves to appear at the Community 

Supervision Department so that a Presentencing Investigation (PSI) report could be prepared for 

use at the punishment hearing. Several weeks later, Seagraves pled not true to the enhancement 

allegations and a bench trial was conducted. After finding both enhancements true, the trial 

court sentenced Seagraves to fourteen years’ imprisonment. Seagraves’ sole issue on appeal is 
3

that the trial court committed reversible error when it failed to properly admonish him of the 

enhanced punishment range. Because the trial court did substantially comply with Article 26.13 

and because Seagraves has failed to affirmatively show he did not understand the consequences of 

his plea and was misled or harmed, we affirm the judgment of the trial court.

II. Substantial Compliance with Article 26.13

The trial court must give a series of admonishments to defendants who plead guilty. 

Seagraves argues

1

his plea of guilty was involuntary because the trial court did not adequately 

admonish him of the range of punishment in substantial compliance with Article 26.13. TEX.

CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2010). The State contends the trial court 

substantially complied with the statute by admonishing Seagraves and that if ―some form‖ of a 

punishment admonishment is given, the statute has been satisfied.2 At the plea hearing, the 

following colloquy occurred:

 THE COURT: All right. [Defense Counsel], come up and announce with 

your client. That’s Seagraves.

 [Defense Counsel]: Yes, sir.

 

1

―[A] court’s failure to properly admonish a defendant cannot be forfeited and may be raised for the first time on 

appeal unless it is expressly waived.‖ Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007). The record 

does not contain any express waiver. 

2The trial court may make the admonitions either orally or in writing. TEX. CODE CRIM. PROC. ANN. art. 26.13(d); 

Munoz v. State, 840 S.W.2d 69, 75 (Tex. App.—Corpus Christi 1992, pet. ref’d). Seagraves was admonished 

pursuant to a boilerplate written plea admonishment. Only the box next to the state jail felony was marked. Pursuant 

to a handwritten correction (crossing out the preprinted ten-year maximum and replacing it with a two-year 

maximum), this part of the form admonished Seagraves that he faced ―confinement for a term of not more than two 

years nor less than 180 days . . . .‖ Although the form contained several admonishments for enhancements, none of 

the boxes next to these enhancements were marked. 
4

 THE COURT: I see him. All right. This is a state jail felony theft and is 

there an offer?

 [The State]: It’s also alleged to be enhanced up to a second.

 THE COURT: Oh, up to a second.

Later during the guilty plea process, the trial court told Seagraves that the ―State is trying to 

allege other cases against you, up to second degree punishment. You know that?‖ Seagraves 

answered, ―Yes, sir.‖ This exchange references that the State had alleged enhancements which 

would increase the punishment range to a second degree felony, but not the numerical range of 

―second degree punishment.‖ 

While there is not a record of Seagraves entering any plea to the two alleged enhancement 

offenses, it is clear that the parties and the judge understood that Seagraves was contesting those 

allegations.3 We view the posture of this case as being a plea of guilty to the underlying offense 

and a plea of not true to the enhancement allegations.4 

The State argues that ―[r]eceiving some form of admonishment is deemed substantial 

 

3At the plea hearing, August 12, 2010, defense counsel stated, ―[The State] pled two priors and I was – we – we plead 

true to one, but it doesn’t do the enhancement.‖ The trial court acknowledged that Seagraves was entering a guilty 

plea and would have a sentencing hearing after the PSI report was completed and told counsel ―he can plead not true to 

the enhancements.‖ At a hearing on September 20, defense counsel told the judge that ―based on what’s in the 

indictment we were going to argue the law and—and we haven’t pled true to the enhancements.‖ The court 

acknowledged, ―He’s always plead [sic] not true to them.‖ At the sentencing hearing on September 30, the judge 

again stated, ―He’s maintained not true to all these charges . . . .‖ After the State presented evidence of the prior 

offenses, defense counsel conceded. 

4

Seagraves did not object at trial or argue on appeal that the trial court erred by failing to read, on the record, the 

enhancement allegations and accept a plea. Although the better practice is to read the enhancement and accept a plea, 

the failure to do so—in a trial before the court—is not error. Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—Houston 

[1st Dist.] 2005, pet. ref’d); Simms v. State, 848 S.W.2d 754, 755 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
5

compliance‖ with the statutory requirement. In support of this argument, the State cites Martinez 

v. State, 981 S.W.2d 195, 196 (Tex. Crim. App. 1998), and Gonzales v. State, 746 S.W.2d 902 

(Tex. App.—Corpus Christi 1988, no pet.), as precedent. Martinez, though, did not hold 

substantial compliance will be found whenever an admonition, no matter how erroneous, is given. 

Martinez merely held the trial court substantially complied with Article 26.13 when the actual 

sentence was within the range of the erroneous admonishment. Martinez, 981 S.W.2d at 196. 

The facts of Gonzales are very similar to this case–the defendant pled guilty to the underlying 

offense and not true to the enhancement allegations. The trial court admonished Gonzales only 

about the range of punishment for the primary offense, not the enhancement allegations. After 

proof of the prior convictions were established, Gonzales was sentenced to the enhanced 

punishment. The court of appeals held the admonishment was substantially in compliance with 

the statutory requirement since the trial court advised Gonzales of the range of punishment for the 

primary offense (―the only allegation to which he pled guilty‖). Gonzales, 746 S.W.2d at 905. 

Although an incomplete or erroneous admonishment is often found to be in substantial 

compliance,5substantial compliance will not always be found when some form of admonition has 

been given. In Weekley v. State, the trial court informed the defendant that he could receive a 

maximum of twenty years, and then the trial court sentenced him to twenty-five years. 594 

S.W.2d 96 (Tex. Crim. App. [Panel Op.] 1980), modified sub silencio on other grounds by High v. 

 

5

See Martinez, 981 S.W.2d at 197; Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992) (citing Weekley v. 

State, 594 S.W.2d 96 (Tex. Crim. App. [Panel Op.] 1980)). 
6

State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998).

6

 The Texas Court of Criminal Appeals held 

the trial court did not substantially comply with Article 26.13. Id. This Court has previously 

noted one of the circumstances where the Texas Court of Criminal Appeals has found a lack of 

substantial compliance is when an erroneous admonition was given and the defendant received 

more years than the court informed him was possible under the charge against him.7

The difference between an actual sentence which is within the range of the admonishment 

given to the defendant, see, e.g., Martinez, 981 S.W.2d at 196, and an actual sentence that exceeds 

the range of the admonishment is profound. We agree with Dix and Dawson that ―[t]he risk in 

cases of this type is that the defendant was induced to plead guilty by an understatement of the 

seriousness of the offense and having done so, was harmed by being punished more severely than 

 

6

Since the decision in Weekley, the Texas Court of Criminal Appeals has held a failure to substantially comply with 

Article 26.13 should be reviewed for harmless error. See High, 964 S.W.2d at 638; Cain v. State, 947 S.W.2d 262, 

264 (Tex. Crim. App. 1997). We are not aware of any opinion of the Texas Court of Criminal Appeals which 

disavows the substantial compliance analysis contained in Weekley. We note that the Texas Court of Criminal 

Appeals has favorably cited Weekley. Hughes, 833 S.W.2d at 140; Robinson v. State, 739 S.W.2d 795, 801 (Tex. 

Crim. App. 1987). Recently, the Texas Court of Criminal Appeals has made the following statement: ―When there 

is insufficient admonition, whether by total failure to admonish or an admonition that is not in substantial compliance

. . . . ‖ Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). This statement suggests that an admonition 

can be given, but still not be in substantial compliance. 

7 Myers v. State, 780 S.W.2d 441, 445 (Tex. App.—Texarkana 1989, pet. ref’d); see Warren v. State, No. 

06-08-00116-CR, 2009 Tex. App. LEXIS 361 (Tex. App.—Texarkana Jan. 22, 2009, no pet.) (mem op., not 

designated for publication); see also Jenkins v. State, No. 01-09-00524-CR, 2011 Tex. App. LEXIS 316 (Tex. 

App.—Houston [1st Dist.] Jan. 13, 2011, no pet. h.) (mem. op., not designated for publication) (―When, however, the 

defendant receives a greater sentence than the court informed the defendant was possible, the admonishment does not 

substantially comply.‖); Sifuentes v. State, Nos. 04-08-00327-CR, 04-08-00328-CR, 04-08-00329-CR, 2009 Tex. 

App. LEXIS 6916 (Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op., not designated for publication)

(finding lack of substantial compliance when defendant received ―a greater sentence that the court advised was 

possible‖ but finding error harmless) [Although these unpublished cases have no precedential value, we may take 

guidance from them ―as an aid in developing reasoning that may be employed.‖ Carillo v. State, 98 S.W.3d 789, 794 

(Tex. App.—Amarillo 2003, pet. ref’d)]; DIX & DAWSON, supra. 
7

the trial court held out as the maximum he or she could receive.‖ 43 GEORGE E. DIX & ROBERT O.

DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 34.41 (West 2001). We reject 

the State’s argument that substantial compliance will always be found when some form of 

admonition has been given. 

We conclude, however, that the trial court did substantially comply under the facts of this 

case. Texas law requires that the trial court admonish the defendant as to the range of punishment 

upon an entry of a plea of guilty or nolo contendere. TEX. CODE CRIM. PROC. ANN. art. 26.13. 

The question in this case is whether or under what circumstances the trial court is required to 

admonish the defendant of the range of punishment for the enhanced punishment. Since Texas 

has a bifurcated trial procedure, where guilt is determined in one proceeding and punishment in 

another, it has been held that the provisions of Article 26.13 do not apply to the separate 

punishment trial. Sylvester v. State, 615 S.W.2d 734, 736 (Tex. Crim. App. 1981). This was true 

even if the defendant entered a ―true‖ plea to the enhancement allegations during the punishment 

proceeding. Id. An admonishment on the potential punishment range if the defendant pleads 

true to the enhancements is the better practice, but the statute does not require it. Harvey v. State, 

611 S.W.2d 108, 112 (Tex. Crim. App. 1981). 

But if the defendant enters a guilty plea from the outset or even during the guilt/innocence

stage, the proceeding is no longer a bifurcated one; there is only one proceeding, and that is to 
8

determine punishment.8 Logic would dictate that if it is not necessary to instruct a defendant on 

the enhanced range of punishment even when he or she pleads true to the enhancement allegation, 

it would not be necessary to admonish of the enhanced range when the defendant pleads guilty to 

the primary offense and not true to the enhancement allegations. 

This very question came before the Texas Court of Criminal Appeals in Ricondo v. State,

where a defendant changed his plea to guilty during the first stage, but he was not admonished of 

the enhancement punishment. 634 S.W.2d 837, 843 (Tex. Crim. App. 1981). In Ricondo, the 

defendant pled guilty during a guilt stage trial and the trial court conducted the trial as if it were 

bifurcated, entering a plea of not true for the defendant, who refused to plead, the State presented 

its evidence of the convictions, and the jury was instructed the State must prove the enhancement 

allegations beyond a reasonable doubt. Id. The court criticized the trial court for treating the 

proceeding as bifurcated, but found no reversible error. Id. 

Here, the trial was to the court and the defendant originally entered a plea of guilty to the 

underlying charge. From the outset, it was clear that the defendant planned to contest the 

enhancement allegations. The matter was treated as a bifurcated trial, a PSI report was ordered, 

the defense attorney announced the plea would be not true, and a trial was conducted at a later date 

where the State was required to prove the enhancement allegations. 

 

8When a defendant waives his or her right to a jury and pleads guilty or nolo contendere before the court, the 

proceeding is best characterized as an extended unitary trial punctuated by a recess in its middle. Saldana v. State, 

150 S.W.3d 486, 489 (Tex. App.—Austin 2004, no pet.); see Barfield v. State, 63 S.W.3d 446, 450–51 (Tex. Crim. 

App. 2001).
9

Seagraves has not directed this Court to any cases—and we are aware of none—reversing 

the trial court when the defendant enters a plea of guilty and is properly admonished for the 

underlying offense, but is not admonished as to the range of punishment for the enhancement 

allegations. Here, Seagraves was properly, in writing, admonished as to the allegation for which 

he pled guilty, as required by Article 26.13. See TEX. CODE CRIM. PROC. ANN. art. 26.13. The 

written admonishment informed Seagraves the maximum sentence was two years in prison. The 

entire matter was treated as a bifurcated trial and the ―punishment hearing‖ was contested. 

Further, even though Seagraves was not specifically instructed concerning the enhanced 

punishment range, the trial court did advise him that other cases were alleged against him, causing 

the punishment to go ―up to second degree punishment.‖ Under these circumstances, where all 

parties treated this as a bifurcated trial (at which enhancement admonishments are unnecessary), 

and since the trial court properly admonished Seagraves on the underlying offense and advised 

him that other charges raised his punishment to a second degree felony, we find the statute was 

substantially complied with. See TEX. CODE CRIM. PROC. ANN. art. 26.13(c). 

III. Seagraves Has Not Affirmatively Shown He Did Not Understand the Consequences

Next, we must determine whether Seagraves has affirmatively shown he did not 

understand the consequences of his plea. Subsection (c) of Article 26.13 provides:

In admonishing the defendant . . . substantial compliance by the court is sufficient,

unless the defendant affirmatively shows that he was not aware of the 

consequences of his plea and that he was misled or harmed by the admonishment of 

the court.
10

TEX. CODE CRIM. PROC. ANN. art. 26.13(c). If the trial court substantially complies with 

Article 26.13,9the defendant has the burden, under Article 26.13(c), to show he or she pled guilty 

without understanding the consequences of that plea and, consequently, suffered harm. Martinez, 

981 S.W.2d at 197; Redd v. State, No. 06-08-00001-CR, 2008 Tex. App. LEXIS 7969 (Tex. 

App.—Texarkana Oct. 20, 2008, no pet.) (mem op., not designated for publication).

Neither party has directed this Court to where in the record there is evidence that Seagraves 

did not understand the consequence of his plea and was misled or harmed. Several references in 

the record indicate Seagraves was advised that a greater punishment was possible. Early in the 

plea proceeding, the State stated the charge was ―alleged to be enhance[d] up to a second.‖ The 

trial court advised that Seagraves could plead not true to the enhancement allegations. The trial 

court advised Seagraves the State alleged other cases against him, raising the punishment to a 

second degree felony. Seagraves returned for a punishment hearing several weeks later, when the 

trial court again stated the punishment level alleged was on a ―second degree basis.‖ At 

punishment, when asked if he understood that the trial court had found the remaining enhancement 

true, which enhanced the punishment range to a second degree felony, Seagraves replied, ―I 

guess.‖ The State produced evidence of the prior convictions and connected Seagraves to them 

 

9When the trial court does not substantially comply with Article 26.13, subsection (c) of Article 26.13, which places 

the burden on the defendant, does not apply. In High, the Texas Court of Criminal Appeals announced that failure to 

substantially comply with Article 26.13 would be subject to harm analysis under Rule 44.2. High, 964 S.W.2d at 638. 

No burden of proof is assigned to either party by Rule 44.2(b). See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. 

App. 2002); see also TEX. R. EVID. 44.2(b). 
11

by fingerprint evidence. The record is silent concerning whether Seagraves understood the 

applicable punishment.10 Our own review of the record did not find any evidence affirmatively 

establishing Seagraves was not aware of the consequences of his plea and that he was misled or 

harmed by the admonishment of the court.

It was Seagraves’ burden, under TEX. CODE CRIM. PROC. ANN. art. 26.13(c), to establish he 

did not understand the consequences of his plea and was misled or harmed. Seagraves has failed 

to meet this burden. 

For the reasons stated, we affirm the judgment of the trial court. 

Jack Carter

Justice

Date Submitted: April 4, 2011

Date Decided: May 5, 2011

Publish

 

10We note the Texas Court of Criminal Appeals has repeatedly stated, in dicta, that a silent record will not establish the 

failure to substantially comply with Article 26.13 of the Texas Code of Criminal Procecure was harmless. See 

Bessey, 239 S.W.3d at 813; Fakeye v. State, 227 S.W.3d 714, 717 (Tex. Crim. App. 2007); Aguirre-Mata v. State, 125 

S.W.3d 473, 476–77 (Tex. Crim. App. 2003); Burnett, 88 S.W.3d at 639; cf. Boykin v. Alabama, 395 U.S. 238 (1969). 

These statements, though, were made in the context of a harmless error analysis when the trial court did not 

substantially comply. The trial court in this case, though, did substantially comply and subsection (c) of Article 

26.13, which places the burden on the defendant, does apply.