Opinion filed August 9 , 201 2



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00301

- CR

__________ ANTHONY RAY DAVISON , Appellan t

V.

STATE OF TEXAS , Appellee

On Appeal from the 278 th District Court

Walker County, Texas

Trial Court Cause No . 24709

O P I N I O N
Anthony Ray Davison entered an open plea of guilty to the offense of burglary of a building. Upon receiving evidence pertaining to punishment at a later hearing, the trial court assessed his punishment at confinement for a term of twenty years in the Institutional Division of the Texas Department of Criminal Justice

. Appellant challenges his conviction and sentence in
two issues

. He argues that he was n ot properly admonished concerning the applicable range of punishment. We affirm.2 Background Facts The grand jury indicted appellant for burglary of a building
, enhanced by three prior felony convictions. Without enhancements, burglary of a building i s a state jail felony with a punishment range of not more than two years or less than 180 days’ imprisonment

. See T EX

. P ENAL C ODE A NN

. § 12.35(a) (West Supp. 2012), § 30.02(c)(1) (West 2011 ). 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 T EX

. P ENAL C ODE A NN

. § 12.33 (West 2011);
f ormer T EX

. P ENAL C ODE § 12.42(a)(2) ( 2009 ). 1 Appell ant executed a “ GUILTY PLEA MEMORANDUM ” on December 4, 2009, that only contained a written admonishment for the punishment range of a state jail felony. Additionally, he admitted “true” in the guilty plea memorandum to the three prior felony
convictions a lleged for enhancement purposes. Afterwards, the trial court commenced the plea hearing conducted on that date with an oral admonishment of the punishment range for only a state jail felony. Appellant subsequently plea ded guilty without a negotiated plea agreement after th is oral admonishment

. Accordingly, appellant was not admonished prior to the entry of his guilty plea with the possible number of years of imprisonment for the enhanced punishment. The trial court concluded the hearing with an announce ment that a punishment hearing would be
he ld at a later date. The punishment hearing occurred on April 1, 2010. At the outset of the hearing, the community supervision and corrections officer that prepared appellant’s P re/ Post Sentence Investigation R epo rt testified that the enhancement allegations elevated the applicable punishment range to that of a second

- degree felony. Prior to sentencing appellant, the trial court
announced that the applicable punishment range was “two to twenty.” The punishment hearing concluded with the trial court sentencing appellant to a term o f confinement of twenty years.
Issues Appellant asserts in his first issue that the trial court erred in failing to accurately admonish him on the possible number of yea rs of imprisonment for the enhanced punishment. In his second issue, he argues that the trial court’s error rendered his guilty plea void. We agree that the trial court erroneously admonished appellant on the applicable punishment range prior to

1 We note that this section was amended in 2011 but that the former version applies to this case based upon the date of the offense. See T EX

. P ENAL C ODE A NN

. § 12.425 (West. Supp. 2012) for the current version3

the entr y of his guilty plea . However, the record does not show that appellant was harmed by the

error. Analysis We begin our analysis by noting that the Dallas Court of Appeals recently issued an opinion in Luckett v. State , No. 05

- 11

- 00156

- CR, 2012 WL 3025117 (Tex. App.

— Dallas July 25, 2012, no pet. h. ) , that involve d a similar situation. The trial court in Luckett admonished
the defendant on the correct range of punishment for t h e primary offense. Luckett
, 2012 WL
3025117 , at *1. How ever, the trial court did not admonish the defendant on the range of punishment that he would become subject to if the enhancement allegations were prove n. We find the holding and analysis in Luckett to be instructive in this appeal.
Prior to accept ing a plea of guilty, the trial court must admonish the defendant of the range of punishment attached to the offense. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.13(a)(1) (West Supp. 2012 ). A defendant is not made aware of the full consequences of his plea if he is not admonished of the punishment he could receive if enhancement allegations are prove n true. Taylor v. State , 591 S.W.2d 826, 828 (Tex. Crim. App. 1979); Luckett , 2012 WL 3025117 , at *1. Accordingly, the trial court should have warned appellant of the f ull range of punishment available through enhancement prior to accepting his plea. Luckett , 2012 WL 3025117 , at *1; Gonzales v. State , 746 S.W.2d 902, 904 (Tex. App.

— Corpus Christi 1988, no pet.). This requirement applies regardless of the defendant’s pl ea to enhancement offenses. Luckett , 2012
WL 3025117 , at *1. In reaching this conclusion, w e disagree with the Texarkana Court of Appeals’ holding in Seagraves v. State , 342 S.W.3d 176, 181 (Tex. App.

— Texarkana 2011, no pet.) , that Art icle 26.13 only req uires the trial court to admonish the defendant on the punishment range for the primary offense. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.13 (West Supp. 2012). The State asserts that appellant has not preserved error regarding the erroneous admonishment by failing to object to it at trial. “[ 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. Cr im. App. 2007). This rule applies because the court has a statutory duty to properly admonish defendants under Article 26.13. Id

. The record does not contain any express waiver by appellant. Having determini ng that the trial court’s pre

- plea admonishment was erroneous, we must determine if it constituted reversible error. If the trial court’s incorrect admonishment4

s ubstantially complie s with Article 26.13 (a)(1), Article 26.13(c) sets out the applicable sta ndard
of review: the defendant would have to affirmatively show that he was not aware of the consequences of his plea and that he was misled or harmed by t he admonishment the court gave.
Luckett , 2012 WL 3025117 , at *2. Substantial compliance did not occur in this case, however, because appellant received a greater sentence than the court informed him was possible. Weekley v. State , 594 S.W.2d 96, 97 (Tex. Crim. App. 1980), abrogated on other grounds by Aguirre

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

- Mata I) ; Luckett , 2012
WL 3025117 , at *2. Accordingly, we conduct the harm analysis for a nonconstitutional error set
out in T EX

. R. A PP

. P. 44.2(b)

. A guirre

- Mata v. State , 125 S.W.3d 473, 474 (Tex. Crim. App.
2 003) ( Aguirre

- Mata II) ; Luckett , 2012 WL 3025117 , at *2. We will not reverse unless the record supports an inference that appellant did not know the consequences of his plea. See Burnett v. State , 88 S.W.3d 633, 638 (Tex. Crim

. App. 2002) ; Luckett , 2012 WL 3025117 , at *2

. Specifically, we examine the entire record to determine whether anything suggests appellant did not know the range of punishment to which he would be subject if the enhancements alleged were proved. See Burnett , 88 S.W.3d at 6 38; Lucke tt , 2012
WL 3025117 , at *2

. As noted previously, a witness and the trial court correctly stated the enhanced punishment range during the punishment hearing. While these statements were made after appellant entered his guilty plea, they occurred prior to sentencing. As was the case in
Luckett , appellant did not claim surprise when the enhanced range of punishment was either discussed or implemented at the punishment hearing

. His lack of a protest on the basis of being surprised supports an inference that he was actually aware of the enhanced punishment range and was not misled by the court’ s erroneous admonishment. Accordingly, the record does not show that appellant d id not know the range of punishment to which he would be subjected if enhancement alleg ations were proved . Appellant’s first issue is overruled. In his second issue, appellant asserts that the trial court’s incorrect admonishment rendered his guilty plea involuntary. However, a ppellant has not properly preserved a com plaint relating to the voluntariness of his guilty plea in accordance with T EX

. R. A PP

. P

. 33.1 in the form of a timely objection, request, or presentment in a motion for new trial. Mendez v. State , 138 S.W.3d 334, 339 (Tex. Crim. App

. 2004); Williams v. State , 10 S.W.3d 788, 789 (Tex. App.

— Waco 2000, pet. ref ’ d). Moreover, appellant argues that a harm analysis under T EX

. R.
A PP

. P. 44. 2( a) for constitutional error applies to our review of the erroneous admonishment by5

asserting that it rendered his plea involuntary. The Texas Court of Criminal Appeals expressly rejected this heightened level of harm analysis in Aguirre

- Mata I and Aguirre

- Mata II for erroneous punishment admonishments. Aguirre

- Mata II, 125 S.W.3d at 473

– 74; Aguirre

- Mata I , 992 S.W.2d at 496. We have already conducted a harm analysis under the correct standard for nonconstitutional error under Rule 44.2(b) in our resolution of appellant’s first issue. Accordingly, appellant’s second issue is overruled.
This Court’s Ruling The judgment of the trial court is affirmed.

TERRY McCALL
JUSTICE

August 9 , 2012
Publish. S ee T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCa ll, J., and Kalenak , J.