NO. 07-10-00132-CR; 07-10-00133-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 25, 2010

CEDRICK WOODS, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 272ND DISTRICT COURT OF BRAZOS COUNTY; NO. 09-00301-CRF-272, 09-00302-CRF-272; HONORABLE TRAVIS B. BRYAN III, JUDGE

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION Appellant, Cedrick Woods, ent ered an open plea of guilty 1 to two counts of burglary of a habitation 2 and one count of evading arrest. 3 The punishment range for the burglary of a habitation offenses was e nhanced by the allegati on of conviction of a

1 An open plea is one enter ed without any agreement wit h the State as to punishment.

2 See T EX

. P ENAL C ODE A NN . § 30.02(a)(1) (Vernon 2003).

3 See id . § 38.04(a), (b)(2)(A) (Vernon Supp. 2010).2 prior felony offense. 4 Appellant entered a plea of true to the enhancement allegation contained in the burglary indict ment. The issue of punishm ent was decided by the trial court and, after hearing the testimony, t he trial court assessed punishment at confinement in the Institutional Division of the Texas Departm ent of Criminal Justice (IDTDCJ) for a period of 30 years for one count of burglary and 10 years for evading
arrest. 5 Appellant appeals through th ree issues contending, in issues one and two, that the trial court’s failure to properly admonish appellant should require this Court to reverse the convictions, and, in issue three, that the evidence was l egally insufficient to support the trial court’s order for restitution. We will reve rse the trial court’s judgments and remand the cases for a new trial.
Factual and Procedural Background
On January 22, 2009, appellant was indict ed in trial court cause number 09- 00301-CRF on two counts of burglary of a habita tion. The indictm ent contained an enhancement paragraph alleging appellant had prev iously been convicted of a felony offense. On that same day, appellant was also in dicted in trial court cause number 09- 00302-CRF for the offense of evading arrest using a motor vehicle. The indictment further alleged that a ppellant had previously been convic ted of the offense of evading
arrest.
On September 18, 2009, appellant executed a written waiver of the right to trial by jury. On January 27, 2010, appellant a ppeared before the trial judge and entered

4 See id . § 12.42(b) (Vernon Supp. 2010).

5 The other count of burglary of a habitation is not referr ed to in the judgment or otherwise referred to after t he plea of guilty was received.3 pleas of guilty to both counts of burglary of a habitation and to one count of evading arrest using a motor vehicle, and entered pleas of true to the enhancement paragraph in each indictment. 6 After hearing all of the evidence, including the testimony of appellant, the trial court assessed punishment at conf inement in ID-TDCJ for 30 years on one of the counts of burglary and 10 ye ars for evading arrest.
Appellant appeals contending that the failure of the trial court to admonish regarding the consequences of his pleas of guilty should result in reversal of the judgments for two reasons. First, appellant c ontends that the fa ilure to admonish pursuant to article 26.13 of the Code of Criminal Procedure has resu lted in harm and, therefore, requires reversal. See T EX . C ODE C RIM

. P ROC

. A NN . art. 26.13 (Vernon Supp. 2010). 7 Second, appellant cont ends that the trial court’s failure to admonish him regarding the consequences of hi s pleas of guilty violated his due process rights under the United States Constitution and, accordingl y, require reversal of the judgments of guilt entered against him. By a third issue, appellant cont ends that there was insufficient evidence to assess restitution agai nst him. We will re verse the judgment of conviction and remand the causes to the trial court for a new trial.

6 The “enhancement paragraph” c ontained in the evading a rrest indictment is actually an element of t he offense and not a true enhan cement of punishment.

7 Further reference to the Code of Crim inal Procedure will be by reference to “art.” or “article.”4 Failure to Admonish
Each of appellant’s first two contentions de al with the failure of the trial court to properly admonish him regarding his various c onstitutional and statutory rights prior to the trial court receiving his pleas of guilty.

Article 26.13 admonishments
Appellant contends that, because the trial court did not admonish him pursuant to article 26.13 prior to the entry of his pleas of guilty, the trial court erred. Further, appellant contends that such error harmed him. Accordingly, appellant contends that as a result of the harm, this Court should re verse and remand the causes back to the trial court for another trial.

Standard of Review
Admonishments pursuant to article 26.13 are designed to provide assurance that when a defendant waives certain of his constitu tional rights, he does so voluntarily and with knowledge of the conseque nces of the act. See VanNortrick v. State , 227 S.W.3d 706, 708 (Tex.Crim.App. 2007). However, the admonitions c ontained in article 26.13 are not constitutionally required. See id . Therefore, any error found in the trial court’s failure to properly give the admonitions requi red by the statute is reviewed as a nonconstitutional error. See id . When we review the record for compliance with the statutory requirement, we look for substantial compliance. Id . However, when the trial court wholly fails to admonish the appellant, there is not substantial compliance, and to assert such is nothing more than a legal fiction. See Cain v. State , 947 S.W.2d 262,5 264 (Tex.Crim.App. 1997). Here, the tria l court in no way complied with the requirements of article 26.13. See art. 26.13(a). We, theref ore, review the record before us for harm pursuant to Texas Rule of Appellate Procedure 44.2(b). See T EX

. R. A PP

. P. 44.2(b). 8 Rule 44.2(b) directs us to disregar d any error reflected in the appellate record, other than constitutional error, that does not affect the subs tantial rights of the appellant. See id .; Bessey v. State , 239 S.W.3d 809, 813 (Tex.C rim.App. 2007). In applying rule 44.2(b) in a failure to adm onish case, the question becomes, after considering the record as a whole, do we have fair assurance that the appellant’s decision to plead guilty would not have ch anged had the trial court admonished him. See Anderson v. State , 182 S.W.3d 914, 919 (Tex .Crim.App. 2006).
Analysis
The record reflects, and both parties agree, that the only article 26.13(a) admonition that is at issue is the range of punishment. Appellant was indicted for two counts of burglary of a habitation in tr ial court cause number 09-00301-CRF. See T EX

. P ENAL C ODE A NN . 30.02(a)(1). 9 As indicted, the primary charge is a second-degree felony. § 30.02(c)(2). A second-degree fel ony is punishable by confinement for a period of not more than 20 years and not le ss than two years in the ID-TDCJ. See § 12.33 (Vernon Supp. 2010). However, the indi ctment for the burglary charges also carried an enhancement paragraph that a lleged appellant had previously been

8 Further reference to the Texas Rules of Appellate Procedure will be by reference to “rule ___” or “Rule ____.”

9 Further reference to the Te xas Penal Code shall be by reference to “§ ____” or “section ____.”6 convicted of the felony offens e of burglary of a habitation. This results in appellant’s punishment range being elevated to a first-degree offense. See § 12.42(b). A firstdegree felony has a possible pun ishment range of confinement in the ID-TDCJ for life or for any term of not more than 99 y ears or less than five years. See § 12.32.

The record also reflects that in tr ial court cause number 09-00302-CRF, appellant was indicted for the offense of evading arrest using a motor vehicle. See § 38.04(b)(1). Evading arrest using a motor vehicle is a state-jail felony and is punishable by confinement in a state-jail facility for any peri od of not more than two years or less than 180 days. § 12.35(a). The indictment contained what is labeled “Enhancement paragraph” that alleges appellant had previously been convicted of evading arrest. If such allegation is proven, the punishment range for app ellant is elevated to third-degree felony status. See § 38.04(b)(2)(A). 10 As a third-degree felony, the punishment range applicable to appellant is confinement in the ID-TDCJ fo r any term of not more than 10 years or less than two years. See § 12.34.

In trial court cause number 09-00301-CR F appellant was sentenced to 30 years confinement in the ID-TDCJ. This was wit hin the punishment range for a first-degree felony. In trial court cause number 09- 00302-CRF appellant was sentenced to 10 years confinement in the ID-TDCJ. This sentence was within the range of punishment for a third-degree felony.

10 Although the State characte rized the prior evading offense as an enhancement, it is actually an element of § 38.04(b)(2)(A). See Calton v. State , 176 S.W.3d 231, 234 (Tex.Crim.App. 2005).7 As we review the entire record, it is ve ry apparent that the St ate had a significant amount of evidence of appellant’s guilt for the offenses char ged. This is a factor we may consider in determining whether any of appellant’s substantial rights may have been affected by the failure to admonish. See Bessey , 239 S.W.3d at 813. Additionally, however, we must bear in mi nd that neither party has the burden to demonstrate harm when we are conducting a rule 44.2(b) analysis in a failure to admonish situation. See Burnett v. State , 88 S.W.3d 633, 638 (Tex .Crim.App. 2002). In Burnett , the Texas Court of Criminal Appeals pointed out that to warrant a reversal in a failure to admonish case, the record must support an inference that appellant did not know the consequences of his plea. See id . The court then went on to say that a silent record would support such an inference. Id . That is exactly what we find in the record before us: silence as to the applicable range of punishment. Therefore, as a reviewing court, we cannot be assured that appellant’s decision to plead guilty would not have changed had the trial court adm onished him properly. See VanNortrick , 227 S.W.3d at 709 (citing Anderson , 182 S.W.3d at 919). Accordingly, we sustain appellant’s issue regarding the failure to admonish pursuant to article 26.13 and find that such failure did affect the substantia l rights of appellant.

Due Process Violation
Having determined that the failure to admonish appellant r egarding the range of punishment did affect appellant’s substantial rights, we need not consider appellant’s remaining issue regarding the contention that such failure to admonish was also a violation of his due process rights. See Ward v. State , 188 S.W.3d 874, 875 n.18 (Tex.App—Amarillo 2006, pet. ref’d); see also Jimenez v. State , 32 S.W.3d 233, 239 n. 23 (Tex.Crim.App. 2000) (recognizing that constitutional issues should not be addressed if the case can be reso lved on nonconstitutional grounds).
Sufficiency of the Evidenc e Regarding Restitution
Appellant’s last issue deals with the sufficiency of the evidence to order restitution. Because we hav e held that the judgments should be reversed, we do not reach the issue of evidentiary support for t he restitution ordered by the trial court’s judgments. See Rule 47.1.

Conclusion
Having sustained appellant’s issue regardi ng failure to admonish on the range of punishment, we reverse the j udgments of the trial court and remand both cases for new trial.

Mackey K. Hancock Justice
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