COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DERRIC CHARLES PHILLIPS,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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Nos. 08-11-00165-CR

Appeal from the

89th District Court

of Wichita County, Texas 

(TC# 46,445-C) 

O P I N I O N

Derric Charles Phillips (“Phillips”) appeals the trial court’s judgments convicting him of 

one count of sexual assault of a child and one count of indecency with a child. He was sentenced 

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. The sentences were ordered to be served 

consecutively. We affirm.

FACTUAL AND PROCEDURAL 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. Phillips 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 that he did, and subsequently pled 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 court sentenced him accordingly,

choosing to cumulate Phillips’ sentences. At no point during the proceedings did the trial court 
2

admonish Phillips as required by Article 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 trial court’s 

failure to 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 

Article 42.08(a) of the Code of Criminal Procedure, violates his Sixth Amendment right that the 

sentence imposed not be greater than that authorized by the jury’s fact-finding.

Failure to Admonish

1. Punishment Ranges

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.ANN. art. 26.13(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 §§ 21.11(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, 637 (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). However, 

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 inference that Phillips was 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 range 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 indecency 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. In an exchange with the prosecutor, one 

prospective juror specifically mentioned the 20-year maximum sentence applicable to the sexual 

assault count when asking the prosecutor 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 range of punishment. Can you 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 punishment 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 assault 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 two 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 evidence at punishment and before closing arguments, 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, the prosecutor 

mentioned the applicable punishment ranges again, and minutes later, asked the jury to impose the 

maximum sentences 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.
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. . .

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 offense 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 after voir dire and before punishment, Phillips did 

not do so. Furthermore, Phillips never 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. We conclude 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.ANN. art. 26.13(a)(5). Having reviewed the record, we agree. 

Nevertheless, as the State correctly points out, Article 26.13(h) of the Code of Criminal Procedure 

specifically precludes us from setting aside Phillips’ convictions, sentences, or pleas on this basis.

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See TEX.CODE CRIM.PROC.ANN. art. 26.13(h); Morin v. State, 340 S.W.3d 816, 817-18 

(Tex.App.--San Antonio 2011, pet. ref’d)(applying Article 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 of 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 

arguments, Phillips’ counsel reiterated that Phillips would be a registered sex offender for the rest of his life 

irrespective of whether he received probation.
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argument that he was entitled to a new trial because the trial court failed to admonish him of 

required sex offender registration). Article 26.13(h) forecloses Phillips’ attempt to set aside the 

trial court’s judgments on the basis that he was not admonished 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), as support for his argument that the trial court’s decision to cumulate his sentences violated 

his Sixth Amendment right that the sentence imposed not be greater than 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 (Tex.Crim.App. 2006). Phillips nonetheless posits that 

Barrow was wrongly decided and invites us to revisit the issue. We decline to do so.

Accordingly, Phillips’ second issue is overruled.

CONCLUSION

Having overruled both of Phillips’ issues, we affirm the judgment of the trial court.

 

4

Phillips also cites Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), as additional 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.
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May 16, 2012

CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)