Opinion
No. 05-08-00834-CR
Opinion issued January 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-71487-SW.
Before Justices MORRIS, FRANCIS, and MURPHY. Opinion By Justice MORRIS.
OPINION
In this case, Theodore Young, Jr. waived a jury and pleaded guilty to arson. The trial court assessed punishment at twelve years' imprisonment. In a single issue, appellant contends the trial court erred by giving an erroneous admonishment that rendered his guilty plea involuntary. We affirm the trial court's judgment as modified. Appellant contends in his sole issue on appeal that the trial court violated article 26.13 of the code of criminal procedure by giving an erroneous admonishment on the range of punishment. He complains the trial court twice orally admonished him of the punishment range for a second-degree felony, although the charged offense was a first-degree felony. He claims that he would have withdrawn his plea had he understood the correct punishment range. Article 26.13 of the Texas Code of Criminal Procedure requires the trial court to admonish a criminal defendant of the punishment range either orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2008). Substantial compliance with article 26.13 creates a prima facie showing that the plea was voluntary, and the burden shifts to the defendant to show he did not understand the consequences of his plea and that he was harmed or misled by the admonishment given. Aguirre-Mata v. State, 125 S.W.3d 473, 480 (Tex.Crim.App. 2003). The record in appellant's case shows the trial court properly admonished him in writing. During the plea hearing, however, the trial judge orally admonished appellant that he was charged with a second-degree felony offense. After the prosecutor told the trial court the indicted offense was a first-degree felony, the trial court corrected itself and told appellant the offense was a first-degree felony. Appellant testified he understood the charges in the indictment and "went over the plea papers" with counsel before he signed them. Appellant said he understood the range of punishment for the offense was "five years to life in prison, or probation, if the judge feels that is appropriate." Appellant asked the trial court to grant him probation. The trial court passed the case for a presentence investigation report. During the sentencing hearing, appellant testified that although he had a previous arson conviction and a significant criminal history, he wanted probation. Appellant's counsel erroneously stated to the court that the applicable punishment range for the offense was "two to twenty," and reiterated this punishment range during his questioning of appellant. Neither the trial court nor the prosecutor corrected defense counsel, and at one point the trial court agreed with defense counsel regarding the applicable punishment range. When a trial court gives an incorrect admonishment on the range of punishment and the actual sentence lies within both the actual and the misstated range for the offense, the court is deemed to have substantially complied with the admonishment requirement. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Appellant's twelve-year sentence is within both the actual punishment range and the range misstated by defense counsel and the court. Although appellant now claims he would have withdrawn his plea had he known the correct punishment range, nothing in the record shows appellant was unaware of the consequences of his guilty plea and that he was harmed or misled by the trial court's admonishments. We therefore resolve appellant's sole issue against him. In a cross-point, the State asks us to modify the trial court's judgment to show appellant was convicted of a first-degree felony. The record shows appellant was indicted for and found guilty of arson of a habitation, a first-degree felony offense. The written judgment, however, states that the offense is a second-degree felony. We sustain the State's cross-point. We modify the trial court's judgment to show the offense is a first-degree felony. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.