Opinion issued June 20, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00448-CR

———————————

ROLAND D. DEMPS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 396th District Court

Tarrant County, Texas1

Trial Court Case No. 1505983D

 

1 Pursuant to its docket equalization authority, the Supreme Court of Texas 

transferred this appeal to this Court. See TEX. GOV’T CODE § 73.001 (authorizing 

transfer of cases).
2

MEMORANDUM OPINION

Appellant, Roland D. Demps, pleaded guilty, without an agreed 

recommendation from the State regarding punishment, to the felony offense of 

driving while intoxicated (“DWI”), third or more offense.2 The indictment contained 

an enhancement paragraph, alleging that appellant had been previously convicted of 

the felony offense of possession of a controlled substance, namely, 

methamphetamine, weighing at least 4 grams.3 The trial court found appellant guilty 

of the primary offense and found the enhancement true. Following a presentence 

investigation, the trial court assessed appellant’s punishment at confinement for five 

years. In his sole issue, appellant contends that the trial court erred by failing to

admonish him as to the range of punishment applicable to his offense, which 

rendered his guilty plea involuntary. 

We affirm.

Background

Appellant was indicted for the offense of driving while intoxicated, third or 

more, enhanced by a prior felony conviction for possession of a controlled substance. 

On March 13, 2018, in its “Written Plea Admonishments,” the trial court 

stated as follows:

 

2 See TEX. PENAL CODE §§ 49.04, 49.09(b)(2).

3 See TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.115(d).
3

1. You are charged with the felony offense of DWI 3rd or More.

. . . .

3. If convicted of the above offense, you face the following range of 

punishment:

. . . . 

THIRD DEGREE FELONY ENHANCED: Imprisonment for a 

term of not more than 20 years or less than 2 years in the Texas 

Department of Criminal Justice; and in addition, a fine not to exceed 

$10,000 may be assessed.

. . . .

OTHER: Plea true to enhancements

. . . .

7. No Plea Agreement (Open Plea): If you have plead guilty without 

[the] benefit of a plea agreement, the plea proceeding is your trial. 

Should the Court find you guilty, your punishment can be set 

anywhere within the range of punishment prescribed by law for the 

offense.

In the same document, immediately after the plea admonishments, the

“Written Waivers of Defendant—Joined by Attorney,” reflect that appellant, in open 

court and joined by his attorney, stated:

(A) . . . . I fully understand each of the above written plea 

admonishments given by the Court and I have no questions. . . . 

(B) I give up and waive arraignment and formal reading of the 

indictment . . . . ;

(C) I am aware of the consequences of my plea;

(D) I am mentally competent and my plea is knowingly, freely, and 

voluntarily entered. No one has threatened, coerced, forced, 

persuaded or promised me anything in exchange for my plea;

. . . .

(P) I give up and waive the attendance and record of a court reporter 

under Rule 13.1, Texas Rules of Appellate Procedure[.]
4

Appellant and his attorney each signed the plea admonishments and waivers. 

Appellant also signed a “Judicial Confession,” in which he admitted his guilt in the 

primary offense, as alleged in the indictment, and that the “enhancement and habitual 

allegations set forth in the indictment are true and correct.”

At the end of the document, along with the trial court’s signature, appears the 

following: “The Court has given the Defendant the admonishments set out in 

paragraphs numbered 1 through 17, above. In addition, the Court finds that the 

defendant is mentally competent and that his plea is intelligently, freely and 

voluntarily entered. . . .” 

At the sentencing hearing, on May 3, 2018, the trial court stated:

Let the record reflect that on March 13th of this year [2018] the 

defendant came to court, pled guilty to the offense of driving while 

intoxicated-felony repetition. The Court accepted the defendant’s plea 

and ordered that a Presentence Investigation Report be compiled by the 

Community Supervision and Corrections Department. The defendant 

also pled true to the Repeat Offender Notice in the indictment. . . . 

The trial court found appellant guilty, noted that it had reviewed the presentence 

report, and sentenced appellant to confinement for five years.

Plea Admonishments

In his sole issue, appellant argues that his plea was involuntary because the 

trial court failed to admonish him as to the range of punishment applicable to his

offense. 
5

Standard of Review and Principles of Law

A defendant’s decision to forgo a jury trial and to enter a guilty plea is 

afforded constitutional protections, including a requirement that the plea result from 

a voluntary and knowing relinquishment of a known right. McCarthy v. United 

States, 394 U.S. 459, 466 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App. 2006); Hampton v. State, 435 S.W.3d 303, 306 (Tex. App.—Houston [1st 

Dist.] 2014, pet. ref’d). Texas Code of Criminal Procedure article 26.13 specifies 

the admonishments that a trial court must make before accepting a guilty plea. TEX.

CODE CRIM. PROC. art. 26.13; Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim.

App. 1985). Included in those requirements is that the trial court admonish the 

defendant as to the range of punishment applicable to the offense charged. TEX.

CODE CRIM. PROC. art. 26.13(a)(1). The trial court may make the admonitions either 

orally or in writing. Id. art. 26.13(d). If it does so in writing, it must receive a 

statement signed by the defendant and his attorney that the defendant understands 

the admonitions and is aware of the consequences of his plea. Id. 

Substantial compliance with the statute 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. Id. art. 26.13(c). A

record reflecting that the statutory admonishments were given constitutes a prima 

facie showing that the defendant knowingly and voluntarily entered his plea. 
6

Harrison, 688 S.W.2d at 499. A defendant who attests that he understands the nature 

of his plea and that his plea was voluntary carries a “heavy burden” on appeal to 

establish that his plea was involuntary. Edwards v. State, 921 S.W.2d 477, 479 (Tex.

App.—Houston [1st Dist.] 1996, no pet.). 

An erroneous plea admonition constitutes non-constitutional error, which 

requires reversal only if the failure affected the defendant’s substantial rights. See 

TEX. R. APP. P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App.

2002) (explaining substantial-rights standard in voluntariness-of-plea case). The 

reviewing court must examine the entire record to determine whether, on its face, it 

suggests that the defendant did not know the consequences of his plea. Burnett, 88 

S.W.3d at 638. A record that is silent on the issue of the range of punishment would 

reasonably support an inference that the defendant did not know the consequences 

of his plea. Id. However, if a record shows that the trial court “delivered an incorrect 

admonishment regarding the range of punishment, and the actual sentence lies within 

both the actual and misstated maximum, substantial compliance is attained.” 

Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Mitchell v. State, 

No. 01-15-00249-CR, 2016 WL 888147, at *2 (Tex. App.—Houston [1st Dist.] Mar. 

8, 2016, pet. ref’d) (mem. op., not designated for publication). 

Texas Penal Code section 49.04 prohibits a person from operating a motor 

vehicle in a public place while in a state of intoxication. TEX. PENAL CODE 
7

§ 49.04(a). Generally, an offense under this section is classified as a Class B 

misdemeanor. Id. § 49.04(b). However, if the State also proves that a defendant has 

been twice previously convicted of an offense related to operating a motor vehicle 

while intoxicated, an offense under section 49.04 is classified as a third-degree 

felony. See id. § 49.09(b)(2); Gibson v. State, 995 S.W.2d 693, 695–96 (Tex. Crim. 

App. 1999) (holding that “prior intoxication-related offenses are elements of the 

offense of driving while intoxicated,” “define the offense as a felony,” and are 

“admitted into evidence as part of the State’s proof of its case-in-chief during the 

guilt-innocence stage of the trial”). The punishment range for a third-degree felony 

is confinement for a term of two to ten years and a fine of up to $10,000. TEX. PENAL 

CODE § 12.34.

In addition, the range of punishment may be enhanced by other prior felony 

convictions. See id. § 12.42(d); Gibson, 995 S.W.2d at 696. Such prior felony 

convictions are not admitted into evidence until the punishment stage of a trial, after 

the defendant has been convicted of the primary felony offense. Gibson, 995 S.W.2d 

at 696 (explaining that “prior intoxication-related convictions serve the purpose of 

enhancing the offense in Section 49.09(b), whereas prior convictions used in Section 

12.42(d) serve the purpose of enhancing punishment”).

Analysis
8

Here, the record shows that appellant was indicted for the offense of DWI, 

third or more, which constitutes a third-degree felony. See TEX. PENAL CODE

§ 49.09(b)(2). In the indictment, the State presented allegations concerning 

appellant’s previous DWI convictions. The State also alleged that appellant was 

previously convicted of a felony offense of possession of a controlled substance,

weighing at least 4 grams. See TEX. HEALTH & SAFETY CODE § 481.115 (classifying 

possession of controlled substance, weighing at least 4 grams but less than 200 

grams, as second-degree felony). 

With exceptions not applicable here, if it is shown on the trial of a third-degree 

felony that the defendant has previously been convicted of a felony, the defendant 

“shall be punished for a felony of the second degree.” TEX. PENAL CODE § 12.42. 

The punishment range applicable to a second-degree felony is imprisonment for a 

term of two to 20 years and a fine of up to $10,000. TEX. PENAL CODE § 12.33. 

Thus, here, if convicted, appellant was subject to a punishment range of confinement 

for two to twenty years and a fine of up to $10,000. See id.

The record shows that, in its “Written Plea Admonishments,” the trial court 

accurately admonished appellant in writing as to the punishment range applicable to 

his offense as follows: “If convicted of the above offense, you face the following 

range of punishment: . . . Imprisonment for a term of not more than 20 years or less 

than 2 years in the Texas Department of Criminal Justice; and in addition, a fine not 
9

to exceed $10,000 may be assessed.” See TEX. CODE CRIM. PROC. art. 26.13(a)(1), 

(d) (providing that trial court may admonish defendant either orally or in writing). 

After the admonishments appears: “Comes now the Defendant, in open Court, 

joined by my attorney and states: . . . I fully understand each of the above written 

plea admonishments given by the Court and I have no questions,” and “I am aware 

of the consequences of my plea.” Appellant and his attorney signed underneath. 

Thus, the trial court received a signed statement that appellant understood the 

admonitions and consequences of his plea. See id. art. 26.13(d) (providing that if 

trial court makes admonitions in writing, “it must receive a statement signed by the 

defendant and [his] attorney that [the defendant] understands the admonitions and is 

aware of the consequences of his plea.”). 

Appellant’s statement is followed by his Judicial Confession and additional 

signature. Finally, the document states, in pertinent part: “The Court has given the 

Defendant the admonishments set out in paragraphs numbered 1 through 17, above.” 

And, the trial court’s signature appears. It is undisputed that the Written 

Admonishments were given on the same day that appellant entered his plea. 

Appellant waived his right to have a court reporter record his plea. See Cantu v. 

State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist] 1999, pet. ref’d) 

(holding defendant who waived court reporter and received written admonishments 

could not show plea was involuntary).
10

Appellant argues that his plea was involuntary because the written plea 

admonishment form “does not have a place for the defendant to sign to so indicate 

that he has, in fact, been admonished as to the range of punishment” and “the form 

does not have a place for the Judge of the trial court to sign which would show [that]

the defendant was properly apprised of the range of punishment as to the offense.” 

As discussed, the record does not support appellant’s argument. 

Appellant further asserts that the trial court erred by not asking him on the day 

of sentencing if he “understood the punishment range” or “wished to withdraw his 

plea.” “There is no requirement that the judge orally admonish a defendant when 

the defendant has signed written admonishments, statements, or waivers, and it is 

established that he understood them.” Willhite v. State, No. 2-08-269-CR, 2009 WL 

2356998, at *2 (Tex. App.—Fort Worth July 30, 2009, pet. ref’d) (mem. op., not 

designated for publication) (discussing TEX. CODE CRIM. PROC. art. 26.13(d)); see 

Scott v. State, 86 S.W.3d 374, 375–76 (Tex. App.—Fort Worth 2002, no pet.); Lee 

v. State, 39 S.W.3d 373, 375 n.1 (Tex. App.—Houston [1st Dist.] 2001, no pet.). 

Thus, having previously admonished appellant in accordance with article 26.13 prior 

to receiving his plea, the trial court was not required to further question appellant 

about the voluntariness of his plea. See Edwards, 921 S.W.2d at 480–81 (holding

that, after written admonishments given in accordance with article 26.13, trial court 
11

not required to further question defendant about his understanding of 

admonishments and voluntariness of plea).

We conclude that the trial court properly admonished appellant regarding the 

applicable range of punishment. Because the trial court complied with the statutory 

requirements, we hold that appellant has not shown that his plea was involuntary.

We overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment. 

Sherry Radack

Chief Justice 

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).