## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00044

- CR

DONALD WAYNE DOWLING , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2229574

Bef ore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
Do nald Wayne Dowling appeals his conviction for possession of a controlled substance, methamphetamine, in an amount of four or more but less than 200 grams. 1 Dowling pled

“ guilty ” without a plea agreement and pled “ true ” to two enhancement allegations. 2 The trial
court sentenced Dowlin g to fifty years’ imprisonment. Because we find that Dowling did not establish that his plea was made i nvoluntar il y and he failed to preserve his c laim that the State did not properly notice him of its intent to seek an enhanced punishment range , we affirm the trial court’s judgment

. I. Background Dowling entered an open plea to the second

- degre e o f fense of possession of

me th amphetamine. At the plea hearing , the trial court erroneously told Dowling that his charge
carried the third

- degree range of puni shment of not less than two and not more than ten years’
confinement and a possible fine not to e x c eed $10,000.00. Ho we ve r, th e t rial court correctly warned Dowling that two enhancement allegations made by the State could result in a sentence
of not less than twenty

- five years no r more than ninety

- nine years or life incarceration. The following ex ch a n ge o ccurred in t he tria l court:

[ T rial court]: This paperwork says that you i nte nd to give up those rights , you’re going to enter a plea of guilty to the possession charge, enter pleas of true to t wo punishment enhancement paragraphs, which takes th e t h ird [

- ] degree [

- ] f el o ny o ffense, but has its objective to a range of punishment un de r the habitual offender statute. So instead of two to ten years in the State penitentiary with an optional fine of up to $10,000, if convicted, it would have a range of p u n i shment

1 See T EX
. H EALTH & S AFETY C ODE A NN . § 481.115(d) (Supp.).

2 See T EX
. P ENAL C O DE A NN
. § 12.4 2 ( d ).3

of no les s t han 25 years and no more than 99 years or life in the penite n tiary. There’s no optional fine under that range of punishment. Dowling told the court he understood all of that

. His counsel described for the court his preparations fo r a nd revie w of the c ase w ith Dowling and said that he was “confident that [Dowling] had s uffi cient time to consider his options and the decisions [he made] , and [wa]s doing so freely, knowingly, voluntarily and competently.” Dowling agreed , “Ye s, sir.” D o w ling then pled gui lty to possession of a controlled subst ance an d true to two prior, sequential felony
convictions. 3 The court then recessed and ordered the completion of a presentence investigation (PSI) report

. About three weeks lat er , t he trial court conducted a senten cing hearing. Regarding the prior hearing , the trial court said , Mr. Dowling waived his right to a jury trial and entered a plea of guilty to the second [

- ] degree [

- ] felony offense of posses sion of a con trolled substan ce
. He also entered pleas of true to two punis hment enhancement paragraphs, two consecutive n on
- state jail felonies, making the second[

- ]degree felony punishable under the habitual offender statute, if convicted.

. . . . The range of punishment for thi s c a s e, again, is confinement in the T exas Depa rtment of Criminal Justice for no less than 25 years and no more than 99 years or life in the penitentiary.
T he court and the parties then discussed the P SI report , and Dowling testified. The court then

sent en c e d Dowling to fift y years in the Te xas Department of Criminal Justice

.

3 The w ritten plea admonishments are in t he record. Where the forms describe the v arious punish me n t r anges, neither box next to the second

- or the third

- degree felonies is c h ec ked. The box is checked next to “ HABITUAL OFFE NDER : A term of life or any term of not more than 99 years or less than 25 ye ars in the Institutional Divi sion of the D ep artm ent of Criminal Justice

. ”4

II. Standard of Review In reviewing a claim that an appellant’s plea of guilty was not made voluntarily, we are to review the “entire record.” Williams v. State , 522 S.W.2d 483, 4 85 ( T ex
. C rim. App. 1975) (“The re view of t he volunt ariness of the guilty plea should not be based solely on questions and answers in the statement of facts, but on the record as a whole

. ”). A trial court must admonish a defendant as required by A rticle 26.13 of t h e Texas Code of Criminal Procedur e
. See T EX
. C OD E C RIM
. P ROC
. A NN
. art. 26.13 (a) ( Supp.). 4 “[S]ubstantial compliance by the trial court is deemed
sufficient unle ss the defendant was not aware of the consequences of his plea and was misl ed or
harmed by t h e admonishment.” Martin ez v. Sta te , 981 S.W.2d 1 95, 197 (Tex. Crim. App. 1998) (per curiam) ( citing T EX
. C ODE C RIM
. P ROC
. A NN
. art. 26.13(c ) ). “When . . . the r ecord indicates that the trial court properly admonished a defendant, a pri ma facie show in g e xists that the defendant entered a knowing and vo luntary plea.” Flores

Alonzo v. State , 460 S.W.3d 197, 2 01 (Tex. App

. — Texarkana 2015, no pet.). “A defendant may still raise the claim that his plea was not voluntary; however, the burden shifts to th e d e f endant to
demonstrate th at he did not fully under stand the consequences of his plea such that he suffered harm.” Martinez , 981 S.W.2d at 197. “When a record show s that the trial court delivered an incorrect admonishment regarding the ra nge of punish me n t , and the actual sentence lies wit hin
both the act ual and misstated maximum, substantial compliance is atta ined. ” Id.

4 T he court must wa rn the defendant of the range of pu n is hment , that a plea recommen dation or agreement by the Sta te is not binding upon the court , and that , if the defendant is not an American citizen , a findin g of guilt co ul d ha ve implications on an application for citizens hip or on th e defendant ’ s immigrat i on status , amo ng other things

. See T EX
. C ODE C RI M
. P ROC

. A NN
. art. 26.13(a)

.5

III. Analysis Dowling is correct that, at the pl ea hearing , the trial court wrongly told Dowling he was pleading guilty to a third

- degr e e felony. 5 However , and mo re important ly, the court in the same breath correctly admonished Dowling that, with the two prior convic tions the State alleged for
enhan cement purposes, Dowling faced a habitual

- offender punishment range of between t w enty

five t o ninety

- nine years or lif e in prison. Three weeks later , at the sentencing hearing , the trial court repeated the correct habitual

- o ffender range of punishment, though at that time he prefaced
it by stating the correct punishment range and felo ny de gree o f the underlying allegatio n, a second

- degree felony. Dowling ’ s sentence of fifty years’ confinement was within the range of punishment the trial court described to Dowling at the plea hearing and later at the sentenci ng proceeding. “Article 2 6.13 exist s t o ensure a defendant und erstands the amo unt of confinement he faces by going forward with his guilty plea.” F rie mel v. State , 465 S.W.3d 770, 774 ( Tex. App.

— Texarkana 2015, pet. ref’d)

. This is not a case where the d efendant “received more ye ars than t h e court informed him
was p ossible unde r th e charge against him.” Myers v. State , 780 S.W.2d 441, 445 (Tex. App.

— Te xarkana 1989, pet. ref’d) . For example , in Weekly v. State , 594 S.W.2d 96 ( Tex. Crim. App. [Panel Op.] 1980) , abrogated on other grounds by A g uirre

- Mata v. State , 992 S.W.2d 495 (Tex

. Crim. App. 1999) , the court told Weekly he could be sentenced to a maximum of twenty years ’

5 “ [A] court ’ s f

ailure to properly admonish a defendant cannot be forfeited and may be raise d for the fir st tim e on appeal unless it is expressly waived.” Bessey v. S tate , 239 S.W.3d 809, 81 2 (Tex. Crim. App. 2007). The record does not contain any express waiver.6

imprisonment, but sentenced him to twenty

- five years. Weekly , 564 S.W.2d at 97. T he Texas
Court of Criminal Appeals f o u n d that that procedure di d not substa ntially c omply with Article
26.13 and was reversible error. Id

. Here, there was no “ risk .

. . that the defendant was induced to plead guilty by an understatement of the seriou sness of the offense and havi ng done so , w as harmed by being punis hed more sev erely tha n the trial court held out as the maximum he or she

co uld receive. ” Seagraves v. State , 342 S.W.3d 176, 181 (Tex. App.

— Texarkana 2011, no pet.) (quoting 43 G EORGE E. D I X & J OHN M. S CHMOLESKY , T EXAS P RACTICE : C RIMINAL P RACTICE &
P ROCE DURE § 40.22 ( 3d ed. 2011)).
I n his brief, Dowling claim s he “entered his plea of guil ty based on the trial court’s

erroneous admonition that he was pleading to a third

- degree felony,” with its maxim um punishment of ten years in p r i son. The record does no t support th is assertion. Whe n the trial
court called D owling’s case for the plea hearing, it is clear Dowling already had decided to plead guilty. The trial court called Dowling’s case and d irected Dowling’s attentio n to “some p l ea
papers , ” which specified the habi tual

- offender punishment range, before the ra nge of punishment

was discus sed

. Also, Dowling t estified at length in the sentencing hearing, detailing several felony convictions going back decades. This undermines hi s appellate assertion that he did not

v oluntarily plead gui l ty because he mistakenly thought he was subject to a third

- degree punishme nt range. Rather, this suggests that Dowling was not hiding from his long criminal history and knew he was s ubject to a s ignificant sentence in t he habitual

- off ender range that had twice been explai n ed to him by the court.7

Dowling failed to demon strate t h at hi s plea of gu ilty was not made voluntarily. We overrule this point of error.
IV. Dow ling Waived A ny Complaint About Notice of Intent to Seek Enhanced Punishment
Do wling also c omplains that the State failed to provide suffi cient notice of its intent to
seek an enh anc ed punishment range with prior convictions. The indictment included an allegation of a prior felony conviction in 1997. The day of the plea hearin g , th e State fil e d a notice of intent to seek an enhanced punish ment range that included the 1997 con vic tion and a 2006 federal conviction

. At no time did Dowling complain to the trial court a bo ut the sufficiency of the notice to seek enhanced punishment

. To preserve a complaint for our review, a party must firs t p resent to the tr ial court a
timel y request, objection, or motion stating the specific grounds for the desired ruling if not
app ar en t from the context. T EX
. R. A PP
. P. 33.1(a)(1) . Fur ther, th e trial court mu s t have “ ruled on the request, objection, or mot ion, either expressly or implicit ly, ” or the complaining party must have objected to the trial court’s refusal to ru le. T EX
. R

. A P P
. P . 33.1(a)(2). Because Dowling did not compla in o f the no tice to seek an e nhanced punishment range to the trial court,
he has not preserved this complaint for our review. See Nino v. State , 223 S.W.3d 749, 755 (Tex. App.

— Houston [14th D ist.] 2007, n o pet.) ; Callison v. State , 218 S.W.3d 822, 826 (Tex.
A pp.

— Beau mont 2007 , no pe t

. ) ; Fairrow v. State , 112 S.W.3d 288, 293 (T ex. App.

— Dallas 2003, no pet.)

. 6

6 To the extent Dowling asserts a due process violation in what h e calls inadequate n ot ice of the enhancement allegations, he did not urge that ground to the trial cour t. Al so, the Texas Court of Criminal Appeals has hel d that ,8

We a ffirm the trial court’s judgment

. 7

Charles van Cleef Justice
Date Submitt ed: July 21, 20 2 3 D ate Decided: August 10 , 2023
Do Not Publish

where a defe ndant offers no defense to an enha ncement allegation and does not request a cont inuance “to discover o r pr epa re a defense , ” due process is s atisfied. Villescas v. Stat e , 189 S.W.3d 2 90, 29 5 ( Tex. Crim. App. 2006). Dowling pled true to both enhancement al legations and never asked for a con tinuance.

7 The State chose not to file a res ponsive brief in thi s case , a s is its prerogative

. See T EX
. R. A PP
. P. 38.3; Volo sen v. State , 227 S.W .3d 77 , 80 ( Tex. Crim. App. 2007). We point out, tho ugh, that this is not an appeal brought pursuant to Anders v. California , 386 U.S. 738, 743

– 44 (1967 ) , and Dowling has r ai sed leg itimate issues . While the S tate is not required to r espond to an appellan t’s br ief, choosing not to respond den ies this Court reasoned answers to an appellant’s arguments

.