Oral argument requested

PD-0326-15

IN THE TEXAS COURT OF CRIMINAL APPEALS

_________________________________________________

MARCUS EDWARD CLICK

APPELLANT

vs.

THE STATE OF TEXAS

APPELLEE

_________________________________________________

FROM THE SECOND COURT OF APPEALS

CAUSE NO. 02-14-00247-CR

APPEAL FROM THE 355TH DISTRICT COURT

OF HOOD COUNTY, CAUSE NO. CR12270

_________________________________________________

APPELLANT’S PETITION FOR

DISCRETIONARY REVIEW

_________________________________________________

GARY UDASHEN

State Bar No. 20369590

gau@sualaw.com

ROBERT N. UDASHEN, P.C.

State Bar No. 20369600

rnu@sualaw.com

BRETT ORDIWAY

State Bar No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 75201

214-468-8100 (office)

214-468-8104 (fax)

Counsel for Appellant

PD-0326-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/8/2015 11:54:37 AM

Accepted 4/15/2015 11:27:52 AM

ABEL ACOSTA

CLERK
2

Ground for Review

Whether an admonishment as to the punishment 

range to which a defendant is subject as a consequence of his plea of true to motion to revoke probation is constitutionally required
3

Table of Contents

Ground for Review...................................................................................... 2

Index of Authorities.................................................................................... 4

Identity of Parties and Counsel................................................................. 6

Statement Regarding Oral Argument....................................................... 7

Statement of the Case and Procedural History ........................................ 8

Argument.................................................................................................... 9

An admonishment as to the punishment range to which a defendant 

is subject as a consequence of his plea of true to motion to revoke 

probation is constitutionally required ................................................... 9

I. The court of appeals’s error ........................................................... 9

II. The constitution requires admonishment as to the range of 

punishment to which one is subject before pleading....................... 12

III. Relief requested........................................................................... 18

Prayer........................................................................................................ 20

Certificate of Service ................................................................................ 22

Certificate of Compliance......................................................................... 22

Appendix ................................................................................................... 23
4

Index of Authorities

Cases

Aguirre-Mata v. State, 125 S.W.3d 473, 478 (Tex. Crim. App. 2003)

....................................................................................................... passim

Aguirre–Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999)

....................................................................................................... passim

Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007) ................ 19

Boykin v. Alabama, 395 U.S. 238, 242 (1969)................................. passim

Brady v. United States, 397 U.S. 742, 749 (1970)................................... 13

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)............... 13, 14, 17

Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 1998)............. 15, 17

Click v. State, No. 02-14-00247-CR, 2015 WL 831993, at *1 (Tex. App.—

Fort Worth Feb. 26, 2015). ............................................................. 10, 12

Ex parte McAtee, 599 S.W.2d 335 (Tex. Crim. App. 1980) ..................... 13

Fuller v. State, 576 S.W.2d 856 (Tex. Crim. App. 1979)......................... 14

Garnica v. State, 53 S.W.3d 457, 460 (Tex. App.—Texarkana 2001, no 

pet.)........................................................................................................ 12

Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) ...... 11

High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998)................... 15

LeBlanc v. State, 768 S.W.2d 881, 882 (Tex. App.—Beaumont 1989, no 

pet.)........................................................................................................ 12

Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) .................... 14

McCarthy v. United States, 394 U.S. 459 (1969) ........................ 15, 17, 18

McDade v. State, 562 S.W.2d 487 (Tex. Crim. App. 1978) ..................... 14

Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.–Fort Worth 2004) .......... 12

Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.–Houston [1st Dist.] 

1985, no pet.)......................................................................................... 12

Stewart v. State, 580 S.W.2d 594 (Tex. Crim. App. 1979)...................... 14

Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980)........................ 13

Whitten v. State, 587 S.W.2d 156 (Tex. Crim. App. 1979)...................... 14

Williams v. State, 415 S.W.2d 917 (Tex. Crim. App. 1967).................... 14

Wright v. State, 499 S.W.2d 326 (Tex. Crim. App. 1973) ....................... 14

Statutes
5

TEX. CODE CRIM. PROC. art. 26.13(a)(1) ................................................... 11

TEX. PEN. CODE § 49.08 .............................................................................. 8

Rules

TEX. R. APP. P. 66.3................................................................................... 20
6

Identity of Parties and Counsel

For Appellant Marcus Edward Click:

RICHARD HATTOX

Trial counsel of record

201 East Bridge Street 

Granbury, TX 76048

GARY A. UDASHEN

ROBERT N. UDASHEN

BRETT ORDIWAY

Appellate counsel of record

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Suite 250

Dallas, Texas 75201

For Appellee the State of Texas:

ROBERT CHRISTIAN

PATRICK BERRY

MEGAN CHALIFOUX

Trial counsel of record

HOOD COUNTY DISTRICT ATTORNEY’S OFFICE

1200 W. Pearl Street

Granbury, Texas 76048

MEGAN CHALIFOUX

Appellate counsel of record

HOOD COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court:

THE HONORABLE RALPH H. WALTON

355TH DISTRICT COURT, HOOD COUNTY
7

Statement Regarding Oral Argument

This petition asks this Court to overrule its precedent. Click believes oral argument would be helpful to this Court’s understanding of 

why. 
8

Statement of the Case and Procedural History

Click was indicted for, and then convicted by a jury of, intoxication 

manslaughter. See TEX. PEN. CODE § 49.08; (CR: 8, 34). On May 24, 

2013, the jury assessed his punishment at 10 years’ imprisonment, suspended pending 10 years’ community supervision. (CR: 34; RR4: 52). 

On April 10, 2014, the State filed a motion to revoke Click’s probation. (CR: 46). The State alleged that Click had violated the terms and 

conditions of his probation by “fail[ing] to abstain from the use of alcohol.” (CR: 46). At a bench trial on May 27, 2014, Click pleaded true to 

the allegation. (RR5: 5). The State presented testimony from Click’s 

probation supervisor that Click had admitted drinking a glass of champagne at a party. (RR5: 6, 15). Click waived his constitutional right 

against self-incrimination and admitted as much, as well, imploring the 

court that he had a drinking problem and to sentence him to a treatment program. (RR5: 48-49, 51-53, 60, 62). The court sentenced Click to 

ten years’ imprisonment. (RR5: 70).
9

Argument

An admonishment as to the punishment range to 

which a defendant is subject as a consequence of 

his plea of true to motion to revoke probation is 

constitutionally required

! ! ! 

I. The court of appeals’s error

Immediately after beginning the bench trial on the State’s motion 

to revoke Click’s probation, the trial court demanded Click enter a plea 

to the State’s accusation:

The court: Read the motion to revoke probation, 

please.

Counsel: We do waive the reading of the motion, 

Your Honor.

Prosecutor: Your Honor, with—with that, if I could read 

just paragraph two, Roman numeral two?

The court: Yes, sir. I will allow you to waive reading, 

counsel, but I will require the reading of the 

allegations as contained in paragraph Roman numeral two.

Prosecutor: May I proceed?

The court: Yes, sir.

Prosecutor: Okay. Paragraph two. (State’s motion read).
10

The court: Sir, how did you plead to that allegation, 

true or not true?

Click: True, Your Honor.

Prosecutor: Subparagraph B. (State’s motion read)

The court: Sir, how do you plead to that allegation, 

true or not true?

Click: True, Your Honor.

The court: All right. Be seated.

(RR5: 4-5). The court never admonished Click as to the punishment 

range to which he would be subjected as a consequence of his plea. 

Accordingly, on appeal Click “argue[d] that the trial court erred by 

failing to admonish him about the range of punishment to which he was 

subject as a result of pleading true to the allegation in the State's motion, analogizing this to a failure to admonish a defendant who pleads 

guilty about the range of punishment to which he will be subjected during a trial's punishment phase.” Click v. State, No. 02-14-00247-CR, 

2015 WL 831993, at *1 (Tex. App.—Fort Worth Feb. 26, 2015). Click 

conceded that this Court has held that trial courts are only required to 

admonish defendants of as much before pleading guilty to felony offenses, not before pleading guilty to misdemeanor offenses, or before plead-
11

ing true in a revocation of community supervision proceeding. Gutierrez 

v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003). Though, in 

each circumstance, “[i]gnorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality,” and “[s]everal federal constitutional rights are involved in a waiver,”1 this Court distinguished between the circumstances under the belief that the admonishment is not constitutionally required, but is instead a statutorily enacted gift to Texas defendants. See 

Aguirre–Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999) (citing TEX. CODE CRIM. PROC. art. 26.13(a)(1)). And because “[t]he statutes 

governing probation do not make reference to article 26.13,” this Court 

reasoned, the admonitions contained therein are thus not required in 

revocation cases. Gutierrez, 108 S.W.3d at 309. But Click urged the 

court of appeals that this Court was wrong. An admonishment as to the 

punishment range to which a defendant is subject as a consequence of 

his plea is constitutionally required—article 26.13(a)(1) is simply a codification of that requirement. 

 

1 Boykin v. Alabama, 395 U.S. 238, 242 (1969) (reversible error where record did not 

disclose that defendant voluntarily and understandingly entered his pleas of guilty).
12

The court “decline[d] Click's invitation to contradict [this Court’s]

precedent.” Click, 2015 WL 831993 at *1 (citing Sierra v. State, 157 

S.W.3d 52, 60 (Tex. App.–Fort Worth 2004) (op. on reh'g) (stating that 

this court “is bound by the precedent of the Texas Court of Criminal 

Appeals and has no authority to disregard or overrule” it), aff'd, 218 

S.W.3d 85 (Tex. Crim. App. 2007); Southwick v. State, 701 S.W.2d 927, 

929 (Tex. App.–Houston [1st Dist.] 1985, no pet.) (“The Court of Criminal Appeals is the highest tribunal on matters pertaining to the enforcement of criminal laws, and when it has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation.”).

II. The constitution requires admonishment as to the range of 

punishment to which one is subject before pleading

For a plea to be valid, it must be voluntary. Boykin, 395 U.S. at 

241 (“It was error, plain on the face of the record, for the trial judge to 

accept petitioner’s guilty plea without an affirmative showing that it 

was intelligent and voluntary.”); Garnica v. State, 53 S.W.3d 457, 460 

(Tex. App.—Texarkana 2001, no pet.) (recognizing that a plea of true to 

probation violation allegations must be voluntary); LeBlanc v. State, 

768 S.W.2d 881, 882 (Tex. App.—Beaumont 1989, no pet.) (same). And 
13

only a defendant who knows and appreciates the extreme consequences 

his plea may entail can make a free and voluntary plea. Brady v. United 

States, 397 U.S. 742, 749 (1970) (“Waivers of constitutional rights not 

only must be voluntary but must be knowing, intelligent acts done with 

sufficient awareness of the relevant circumstances and likely consequences.”). 

This Court once recognized that the trial judge thus has a constitutionally required duty to see that a defendant understands the consequences of pleading guilty. See Whitten v. State, 587 S.W.2d 156, 158 

(Tex. Crim. App. 1979) (“An affirmative showing of such knowledge is 

constitutionally required as well.” (citing Boykin, 395 U.S. 238)), overruled by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). In fact, 

“[b]eginning as early as the 1960’s, this Court held that the failure to 

properly admonish a defendant of the consequences of his guilty plea by 

failing to advise him of the sentencing range was ground for automatic 

reversal without regard to harm.” Aguirre-Mata v. State, 125 S.W.3d 

473, 478 (Tex. Crim. App. 2003) (Johnson, J., dissenting) (citing, e.g., 

Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980); Ex parte 

McAtee, 599 S.W.2d 335 (Tex. Crim. App. 1980); Whitten v. State, 587 
14

S.W.2d 156 (Tex. Crim. App. 1979); Fuller v. State, 576 S.W.2d 856 

(Tex. Crim. App. 1979); Stewart v. State, 580 S.W.2d 594 (Tex. Crim. 

App. 1979); McDade v. State, 562 S.W.2d 487 (Tex. Crim. App. 1978); 

Wright v. State, 499 S.W.2d 326 (Tex. Crim. App. 1973); Williams v. 

State, 415 S.W.2d 917 (Tex. Crim. App. 1967)). And “[t]he rationale behind these holdings was to insure that a defendant entered a plea with 

full knowledge of its consequences, as required by the United States 

Supreme Court in Boykin.” Id.

This Court abandoned that holding, though—determining that 

admonishments were only statutorily required—in its 1999 opinion in 

Aguirre–Mata, 992 S.W.2d at 499. Aguirre-Mata was the end result of a 

trend that began in 1997 when this Court decided Cain, 947 S.W.2d 

262. As Judge Johnson later explained when Aguirre-Mata came back 

before this Court:

Cain raised the issue of a trial court’s failure to admonish a 

defendant about the deportation consequences of a guilty 

plea, as required by art. 26.13(a)(4). Here, we recognized 

that substantial compliance had sometimes been used as a 

rough replacement for a harmless error analysis, when that 

was really not its purpose. Cain, 947 S.W.2d at 264. We then 

went on to cite Matchett v. State, 941 S.W.2d 922 (Tex. Crim. 

App. 1996), in which a plurality of this Court held that all 

errors, including a failure to admonish under art. 

26.13(a)(4), are subject to a harmless error analysis. Id. The 
15

majority in Cain took Matchett’s holding regarding art. 

26.13(a)(4) and expanded it to hold that “except for certain 

federal constitutional errors labeled by the United States 

Supreme Court as ‘structural,’ no error, whether it relates to 

jurisdiction, voluntariness of a plea, or any other mandatory 

requirement, is categorically immune to a harmless error 

analysis.” Id.

Using Cain as authority, we began to hold for the first time 

that a complete failure to comply with art. 26.13(a)(1) was 

subject to a harm analysis. In 1998, we held that the First 

Court of Appeals erred by holding that the complete failure 

to admonish a defendant under art. 26.13(a)(1) is automatic 

reversible error, without regard to harm. High v. State, 964 

S.W.2d 637, 638 (Tex. Crim. App. 1998). After High, we decided Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 

1998). Here, in an effort to reconcile all of our previous case 

law and to create a workable test, we analyzed sections (1)-

(5) of art. 26.13(a) as a whole. Carranza, 980 S.W.2d at 656. 

Applying McCarthy v. United States, 394 U.S. 459 (1969), we 

held that the purpose and function of art. 26.13(a) is to ensure that only a constitutionally valid plea is entered and accepted by the trial court, but that art. 26.13(a) itself is statutory and does not implicate constitutional protections. Carranza, at 656. We went on to hold that the failure of the trial 

court to admonish a defendant regarding his deportation status was non-constitutional error and was, therefore, subject 

to a harm analysis under Rule 44.2(b). Id. at 658.

Aguirre-Mata, 125 S.W.3d at 481 (Johnson, J., dissenting). From that,

this Court’s original Aguirre-Mata opinion then held that, even though 

the trial court completely failed to admonish the appellant as required 

by art. 26.13(a)(1), the error was subject to a harm analysis. Aguirre–

Mata, 992 S.W.2d at 499. This Court then “said that under Carranza, 
16

the error should be reviewed under Rule 44.2(b); the admonishments 

embodied in art. 26.13(a)(1) are not constitutionally required because 

their purpose and function is to assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered.” 

Aguirre–Mata, 125 S.W.3d at 481 (Johnson, J., dissenting) (citing 

Aguirre-Mata, 992 S.W.2d at 499).

As Judges Johnson and Price recognized when Aguirre-Mata was 

back before the Court four years later, however, “several flaws appear[ed] in [this Court’s] reasoning” in its original opinion. Id. at 481 

(Johnson, J., dissenting). “First, and most importantly, [this Court’s] 

holding is contrary to the constitutional law of the United States as required by Boykin v. Alabama.” Id. (Johnson, J., dissenting). In that 

case, “the Supreme Court held that the voluntariness of a plea must 

appear on the face of the record or a reversal is required,” and the defendant must be shown to have “a full understanding of what the plea 

connotes and of its consequence.” Id. (Johnson, J., dissenting) (citing 

Boykin, 395 U.S. at 244).

Second, the authority cited in this Court’s initial review of Aguirre-Mata concerned solely the failure to admonish of possible deporta-
17

tion, and those cases are not controlling on the issue of failure to admonish as to sentence ranges: 

In Carranza, we used language that implied that all admonishments under art. 26.13(a) are the same. Carranza, at 656. 

I do not believe that this implication is correct; some of the 

admonishments included in art. 26.13(a) are constitutionally 

required and some are not. Texas has imposed the statutory 

requirement that a trial court admonish a defendant of the 

possible deportation consequences through art. 26.13(a)(4), 

but there is no similar federal or state constitutional right to 

such admonishment. Error under art. 26.13(a)(4) is, therefore, purely statutory and subject to analysis under Rule 

44.2(b). However, as I understand the law, the right to know 

the range of punishment under art. 26.13(a)(1) is constitutional, and it was improper to apply Cain and Carranza to 

the constitutional due-process violations of art. 26.13(a)(1).

Aguirre-Mata, 125 S.W.3d at 481 (Johnson, J., dissenting). Again, 

“[u]nder Boykin, 395 U.S. at 244 n. 7, admonishment as to the range of 

punishment impacts the voluntariness of a plea and thereby implicates 

the due-process clause. There is no similar constitutional right to be 

admonished as to possible deportation.” Id. (Johnson, J., dissenting).

Third, this Court’s prior holding relied upon McCarthy, 394 U.S. 

459, “for the proposition that a plea admonishment itself is not constitutionally required, but is there merely to aid the trial court.” Id. at 482

(Johnson, J., dissenting) (citing Aguirre–Mata, 992 S.W.2d at 498; Carranza, 980 S.W.2d at 656). But McCarthy addressed Federal Rule of 
18

Criminal Procedure Rule 11, not a constitutional issue, and the Supreme Court specifically stated that it’s opinion did “not reach any of 

the constitutional arguments petitioner urges.” McCarthy, 394 U.S. at 

464. In speaking of the voluntariness of a plea, though, McCarthy explicitly invoked the due-process clause of the United States Constitution. Id. at 466. And, of course, “[t]wo months after McCarthy, the Supreme Court decided Boykin and held that failure to establish the voluntariness of a plea was constitutional error. McCarthy, therefore, cannot control violations of art. 26.13(a)(1).” Aguirre-Mata, 125 S.W.3d at 

482 (Johnson, J., dissenting).

For all these reasons, this Court was wrong to overrule its original 

holding: it was constitutional error to fail to admonish a defendant as to 

the range of punishment to which he was subject by pleading guilty. 

Aguirre–Mata, 125 S.W.3d at 483 (Johnson, J., dissenting).

III. Relief requested

Click thus respectfully requests this Court to grant this petition so 

that it may (1) overrule Aguirre-Mata and its progeny and restore that 

holding. Further, because, again, whether pleading guilty to a felony or 

misdemeanor, or true to a probation violation allegation, “[i]gnorance, 
19

incomprehension, coercion, terror, inducements, subtle or blatant 

threats might be a perfect cover-up of unconstitutionality,” and 

“[s]everal federal constitutional rights are involved in a waiver,”2 (2) 

Click respectfully requests this Court to hold that that his constitutional rights were violated when the trial court in this case failed to admonish him as to the range of punishment to which he was subject as a result of his plea of true. That the statutes governing probation do not 

make reference to article 26.13 of the Code of Criminal Procedure is irrelevant. And for the same reason, (3) Click respectfully requests this 

Court to hold that his failure to object to the lack of admonishment does 

not preclude this Court’s review. A defendant’s right to be properly admonished is a waivable-only right, and errors may be raised for the first 

time on appeal if the complaint is that the appellant was denied a waivable-only right that he did not waive. Bessey v. State, 239 S.W.3d 809, 

812 (Tex. Crim. App. 2007). Finally, should this Court do so, (4) Click 

respectfully requests it to then remand this case to the court of appeals 

to analyze whether the trial court’s infringement of Click’s constitution-

 

2 Boykin, 395 U.S. at 242 (reversible error where record did not disclose that defendant voluntarily and understandingly entered his pleas of guilty).
20

al rights was “structural,” and therefore immune from a harmless error 

analysis, or whether it is the type of constitutional error governed by 

Rule of Appellate Procedure 44.2(a).

Prayer

Accordingly, because admonishment as to the punishment range 

to which a defendant is subject as a consequence of his plea is constitutionally required, Click respectfully requests this Court to grant this petition and consider this important question of federal constitutional law. 

See TEX. R. APP. P. 66.3(c) (“While neither controlling nor fully measuring the Court of Criminal Appeals' discretion,” this Court will consider 

“whether a court of appeals has decided an important question of state 

or federal law in a way that conflicts with the applicable decisions of the 

Court of Criminal Appeals or the Supreme Court of the United States” 

in deciding whether to grant discretionary review).

Respectfully submitted,

/s/ Gary A. Udashen

Gary A. Udashen

State Bar No. 20369590

gau@sualaw.com
21

/s/ Robert N. Udashen

ROBERT N. UDASHEN, P.C.

State Bar No. 01274700

rnu@sualaw.com

/s/ Brett Ordiway

BRETT ORDIWAY

Bar Card No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road Suite 250

Dallas, Texas 75201

(214)-468-8100 (office)

(214)-468-8104 (fax)

Attorneys for Appellant
22

Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of 

the foregoing Petition for Discretionary Review was electronically 

served to the Hood County District Attorney’s Office on April 8, 2015.

/s/ Gary A. Udashen

Gary A. Udashen

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies 

that this brief complies with:

1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because 

this petition contains 2,509 words, excluding the parts of the brief 

exempted by TEX. R. APP. P. 9.4(i)(1).

2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type 

style requirements of TEX. R. APP. P. 9.4(e) because this brief has 

been prepared in a proportionally spaced typeface using Microsoft 

Word 2011 in 14-point Century Schoolbook.

/s/ Gary A. Udashen

Gary A. Udashen
23

Appendix
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00247-CR

MARCUS EDWARD CLICK APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. CR12270

----------

MEMORANDUM OPINION1

----------

In a single issue, appellant Marcus Edward Click appeals the trial court’s 

judgment revoking his community supervision and sentencing him to ten years’ 

confinement. We will affirm.

Click pleaded guilty to intoxication manslaughter, a second-degree felony,

and a jury assessed his punishment at ten years’ confinement and a $10,000 

fine; the trial court then suspended imposition of the sentence of confinement 

 1

See Tex. R. App. P. 47.4.
2

based on the jury’s recommendation and placed Click on ten years’ community 

supervision. See Tex. Penal Code Ann. § 49.08 (West 2011); see also id.

§ 12.33 (West 2011) (stating that the punishment range for a second-degree 

felony is two to twenty years’ confinement and may include a fine not to exceed 

$10,000). Around a year later, the State filed a motion to revoke Click’s 

community supervision, alleging that Click had failed to abstain from using 

alcohol. Click pleaded true to the allegation, and the trial court revoked his 

community supervision “based upon [his] plea and the evidence presented” and 

imposed the original ten-year sentence and $10,000 fine.

Click argues that the trial court erred by failing to admonish him about the 

range of punishment to which he was subject as a result of pleading true to the 

allegation in the State’s motion, analogizing this to a failure to admonish a 

defendant who pleads guilty about the range of punishment to which he will be 

subjected during a trial’s punishment phase. However, Click acknowledges that 

in Gutierrez v. State, the court of criminal appeals held that a trial court is only 

required to admonish a defendant of the punishment range before he or she

pleads guilty to a felony offense and not before he or she pleads true in a 

revocation proceeding. 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003) (“[I]n 

the context of revocation proceedings, the legislature . . . has not required the 

court to inquire as to the existence of a plea agreement or admonish the 

defendant pursuant to 26.13.”); see also Aguirre-Mata v. State, 125 S.W.3d 473, 

475 (Tex. Crim. App. 2003) (stating that Boykin v. Alabama, 395 U.S. 238, 89 
3

S. Ct. 1709 (1969), “clearly did not hold that due process requires the equivalent 

of the Article 26.13(a) admonishments or an admonishment on the range of 

punishment” to a defendant pleading guilty); cf. Tex. Code Crim. Proc. Ann. art. 

26.13(a)(1) (West 2009 & Supp. 2014) (stating that before a trial court accepts a 

guilty plea or plea of nolo contendere, it shall admonish the defendant of the 

range of punishment attached to the offense).

We decline Click’s invitation to contradict the court of criminal appeals’s

precedent; therefore, we overrule his sole issue and affirm the trial court’s 

judgment. See, e.g., Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.—Fort Worth 

2004) (op. on reh’g) (stating that this court “is bound by the precedent of the 

Texas Court of Criminal Appeals and has no authority to disregard or overrule” 

it), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007); Southwick v. State, 701 S.W.2d 

927, 929 (Tex. App.—Houston [1st Dist.] 1985, no pet.) (“The Court of Criminal 

Appeals is the highest tribunal on matters pertaining to the enforcement of 

criminal laws, and when it has deliberately and unequivocally interpreted the law 

in a criminal matter, we must adhere to its interpretation.”).

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 26, 2015