COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

DERRIC CHARLES PHILLIPS , Appellant ,

v.

THE STATE OF TEXAS , Appellee. § § § § § § No s
. 08

- 11

- 00 165

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Appeal from the
89 th District Court
of Wichita County, Texas (TC# 46 , 445

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O P I N I O N Derric Charles Phillips ( “ Phillips ” ) appeals the trial court’s judgment s convicting him of
one count of sexual assault of a child and one count of indecency with a child . He was sentenc ed to 16 years ’ imprisonment and a $2 , 500 fine on the sexual assault count and 10 years ’ imprisonment and a $2 , 500 fine on the indecency count . T he sentences were ordered to be served consecutively

. We affirm.

FACTUAL AND PROCEDUR AL BACKGROUND On the eve of his criminal trial, Phillips entered guilty pleas to the sexual assault and indecency counts in open court outside the presence of the jury

. P hillips had previously elected the jury to determine his punishment. Following voir dire , the trial court asked Phillips if he remained intent on pleading guilty. Phillips stated th at he did, and subsequently ple d guilty in front of the jury before it considered the evidence in the punishment phase of the trial. The jury subsequently recommended Phillips’ punishment and the trial c ourt sentenced him accordingly, choosing to cumulate Phillips’ sent ences. At no point during the proceedings did the trial court2

admonish Phillips as required by A rticle 26.13 of the Code of Criminal Procedure before accepting his guilty pleas

. DISCUSSION Phillips raises two issues on appeal

. In his first issue , he argues that the tr i a l court’s
failure t o admonish him of the punishment range that he faced on each count and of the requirement that he would have to register as a sex offender before accepting his guilty pleas rendered his pleas involuntary because he did not have the requisite information to make an informed decision. In his second issue, Phillips argues that the trial court’s decision to cumulate his sentences without having to satisfy an articulated burden of proof, as currently permitted by
A rticle 42.08(a) of the Code of Criminal Procedure, violates his Sixth Amendment right that the sentence imposed not be greater t han that authorized by the jury’ s fact

- finding.
Failure to Admonish
1. Punishment Range s The State concedes that the trial court failed to admonish Phillips of the punishment range
that he faced for each count before accepting his guilty pleas as was statutorily required

. 1 See
TEX.CODE CRIM.PROC.A NN. art . 26.1 3(a)(1) ( West Supp. 2011). Having reviewed the record, we agree. Nevertheless, the State argues that because Phillips was well aware of the applicable punishment range, he suffered no harm. 2 If the record supports the inference that Phillips was unaware of the range of punishment for each count he faced and his ignorance

1 Here, the range of punishment for sexual assault of a child count is imprisonment for not more than 20 years or less than 2 years and assessment of a fine of up to $10,000. See TEX. PEN.CODE ANN. §§ 22.011(f); 12.33 ( West 2011). The range of punishment for the indecency with a child count is imprisonment for not more than 10 years or less than 2 years and assessment of a fine of up to $10,000. See id. at §§ 21.1 1 (d); 12.34 (West 2011)

.
2 Both Phillips and the State agree that the trial court’s failure to admonish Phillips on the range of punishment is non
- constitutional error subject to harm analysis pursuant to Rule 44.2(b) of the Texas Rules of Appellate Procedure. See TEX.R.APP.P. 44.2(b); Burnett v. State , 88 S.W.3d 633, 6 37 (Tex.Crim.App. 2002).3

materially affected his decision to plead guilty, Phillips was harmed by the trial court’s failure to
admonish. See Burnett v. State , 88 S.W.3d 633, 638

- 39 , 641 (Tex.Crim.App. 2002). Ho wever, if the record supports the inference that Phillips was aware of the range of punishment for each

count he faced , Phillips was not harmed by the trial court’s failure to admonish

. See id

. The record is replete with evidence that supports the inferen ce that Phillips w as aware of the range of punishment for each count he faced. The voir dire was held in open court and in Phillips’ presence. One of the primary topics discussed during voir dire was the applicable range of punishment and the prospective jurors’ capacity to assess punishment. When the prosecutor was addressing the prospective jurors , she explained to them the range of punishment for each

count: The punishment range in Texas for most offenses is very broad

. . . . [A] nd the punishment ra nge also covers a lot of

-- is

-- is very broad so that all of those things that fall within that particular offense can be punished appropriately. For a sexual assault, the punishment range is from two to twenty years and up to a $10,000 fine. And for i ndecency with a child, it’s two to ten years and a $10,000 fine. Both of these may, in some case be eligible for probation if the person has not previously been convicted of a felony. Following this explanation , the prosecutor then asked each prospective juror individually if he or she could consider the full range of punishment. I n an exchange with the prosecutor, one prospective juror specifically mentioned the 20

- year maximum sentence applicable to the sexual assault count when asking the p rosecutor about probation : VENIREMAN MELTON : I have a question. Are you saying that we can

-- that we would

-- if they were convicted of sexual assault that we could give them probation all of the way up to 20 years or

– THE PROSECUTOR : That’s your ran ge of punishment. Can yo u consider the full range?4

When Phillips’ counsel was addressing the prospective jurors, he specifically stated that the punishment range for aggravated sexual assault was inapplicable, and then, minutes later,
mentioned the punis hment ranges that were applicable : That’s aggravated sexual assault. The range of punishment on that would be five to life, so those don’t

-- those cases are extreme cases and don’t fit really our offenses here, okay?

. . . All right. Range of punishment . . .

. Both the State and the Defendant are entitled to jurors who can consider the full possible range of punishment from the minimum to the maximum. In other words from the minimum of two years on both offenses, the sexual assaul t or indecency with a child, or the maximum of ten years on indecency with a child, the exposure case, or 20 years in the sexual assault case, okay? So you have to be able to consider as little as two years and then a 10 and a 20 on the other

-- on the tw o offenses, okay? Following voir dire , the trial court admonished Phillips twice that he had a right to have the jury determine his guilt or innocence on both counts, but Phillips remained steadfast that he wanted to plead guilty

. After the close of evide nce at punishment and before closing a rgument s , the trial court read its charge to the jury. In its charge, the trial court detailed the applicable range of punishment for each count Phillips faced. Immediately after the charge was read to the jury, t he prosecutor mentioned the applicable punishment ranges again , and minutes later, asked the jury to impose the
maximum sentence s allowable :

I want to talk to you briefly about the Charge that the Judge just read to you. There on the first page, you have the range of punishment that we discussed during voir dire. For Count I it’s somewhere from two to twenty years and that fine up to $10,000. In Count II, it’s anywhere from two to ten years and that fine up to $10,000.5 . . . I ask you to go back in that jury room and get justice for Mark. And I ask you to go back in the jury room and give Derric 20 years on Count I and 10 years on Count II

. . . . Despite the repeated references to the punishment range applicable to each off ense and the opportunity to reconsider whether to plead guilty, Phillips did not object or attempt to withdraw his pleas at any time during voir dire or before punishment. Likewise, although given the opportunity to object to the trial court’s charge afte r voir dire and before punishment, Phillips did
not do so. Furthermore, Phillips n ever raised any issue regarding the trial court’s failure to admonish him on the punishment ranges at sentencing or in the subsequently

- filed motion for new
trial. W e concl ude that the trial court’s failure to admonish Phillips of the applicable punishment
range that he faced on each count was harmless error and did not render his pleas involuntary.
2. Sex Offender Registration
The State also concedes that the trial court failed to admonish Phillips that he would have to register as a sex offender before accepting his guilty pleas as was statutorily required

. See
TEX.CODE CRIM.PROC.A NN. art . 26.13(a)(5)

. Having reviewed the rec ord, we agree. Nevertheless, as the State correctly points out, A rticle 26.13(h) of the Code of Criminal Procedure specifically precludes us from setting aside Phillips’ convictions , sentences, or pleas on this basis

. 3
See TEX.CODE CRIM.PROC.A NN. art. 26 .13(h ) ; Morin v. State , 340 S.W.3d 816, 817

- 18 (Tex.App.

-- San Antonio 2011, pet. ref’d ) (applying A rticle 26.13(h) to dispose of appellant’s

3 Even if Article 26.13(h) were inapplicable, the record is replete with evidence that Phillips knew that he would be required to register as a sex offender

. The most revealing is Phillips’ own admissions at the punishment phase o f the trial. In response to his counsel’s question, Phillips testified affirmatively that he understood the ramification that, by pleading guilty, he was “going to be a registered sex offender for the rest of [his] life . . . .” Also, during closing argu ments, Phillips’ counsel reiterated that Phillips would be a registered sex offender for the rest of his life irrespective of whether he received probation.6

argument that he was entitled to a new trial because the trial court failed to admonish him of required sex offender registration)

. A rticle 26.13(h) forecloses Phillips’ attempt to set aside the trial court’s judgments on the basis that he was not admonish ed that he would have to register as a
sex offender

. Phillips ’ first issue is overruled

.

Imposition of Consecutive Sentences Phillips cites Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a s support for his argument that the trial court’s decision to cumulate his sentences violated
his Sixth Amendme nt right that the sentence imposed not be greater t han that authorized by the jury’s fact

- finding . However, as Phillips acknowledges in his brief, the Texas Court of Criminal Appeals rejected this same argument in Barrow v. State , concluding that Apprendi and its progeny were inapplicable since they did not address a trial court’ s authority to cumulate sentences when that authority is provided by statute and is not based upon discrete fact

- finding, but is wholly discretionary. 4 See 207 S.W.3d 377, 380 (Te x.Crim.App. 2006). Phillips nonetheless posits that
Barrow was wrongly decided and invit es us to revisit the issue. W e decline to do so. Accordingly, Phillips’ second issue is overruled

. CONCLUSION Having overruled both of Phillips’ issues, w e affirm the judgment of the trial court

.

4 Phillips also cites Oregon v. Ice , 555 U.S. 160, 1 29 S.Ct. 711, 172 L.Ed.2d 517 (2009), as addit ional support for his argument

. However, Ice is inapposite. The issue in Ice was not whether the trial court was required to engage in fact

- findings to justify imposing consecutive sentences, but whether it was constitutionally permissible for the trial court, rather than the jury, to engage in fact

- findings to justify imposing consecutive sentences. See id. at 164, 129 S.Ct. at 714

- 15. This is not the issue here, and even if it were, the Supreme Court held in Ice that it was constitutionally permissible for the trial court, rather than the jury, to engage in such fact

- finding. See id

.7

May 16 , 2012 CHRISTOPHER ANTCLIFF, Justice Before McClure, C.J., Rivera, and Antcliff, JJ. (Do Not Publish)