Without benefit of a plea bargain, Waddell Kinkay Jones pleaded guilty to third-degree felony theft, and the trial court set punishment at ten years in the penitentiary. In three issues, Jones argues his conviction must be reversed because the trial court did not admonish him on the punishment range, rendering his plea involuntary and violating his statutory as well as state and federal constitutional rights. Finding error in the trial court's failure to admonish Jones, and an inference that Jones did not know the consequences of his plea, we reverse his conviction and remand for new trial. Jones waived a jury and initially entered a not guilty plea before the court. The State called four witnesses who testified that Jones bought a house from one party and in the same transaction sold that house to his girlfriend, intending to make about $200 in the process. Due to an error at Fidelity National Title, he was issued a check for $177,100.37 that he was not supposed to receive. Jones took the money and deposited the $177,100.37 in a new bank account. When the check cleared, he left $100,000 in the account and took the remaining $77,100.37 in cash and cashiers' checks. Employees of Fidelity National Title and eventually their attorneys called Jones repeatedly and notified him of the error by regular and certified mail. He did not respond and refused receipt of the certified letters. The $100,000 in the new account was frozen and a civil judgment was necessary to return that money to Fidelity National Title. Employees also contacted Jones's girlfriend and enlisted her aid in trying to get him to return the remaining $77,100.37. The girlfriend succeeded in returning $40,000 to Fidelity National Title. The escrow officer who made the mistake took out a $37,000 personal loan at her own bank to cover the remaining shortage in the escrow account. Through questioning of the State's witnesses, Jones's defense was that he had never been personally asked to return the $177,100.37, although he did not return phone messages, respond to regular and certified mail, or accept service of process in response to the civil lawsuit resulting in his being served by posting on the door of his house. The case was reset at the conclusion of the first day of trial. The State told the court it had one more witness to call before resting. At the next trial setting, Jones changed his plea to guilty and said he was pleading guilty freely and voluntarily. Defense counsel indicated his "reservations" about the plea, but said Jones "made this decision on his own, and it's a decision that he arrived at on his own." The trial court had appellant read over the judicial confession, and Jones signed it in open court. A pre-sentence investigation was scheduled and the case reset for sentencing. At the sentencing hearing ten months later, Jones appeared with a new attorney and told the court that he had changed his plea to guilty because he knew he would "probably be found guilty." He admitted having "received an undue, unfair gain on the money," knew it was not his money, wanted to pay it back, and tried to pay it back. Jones told the court he earned about $2200 a month and knew he owed about $30,000. He presently had $100. His girlfriend was awaiting a $38,000 Social Security settlement. Jones stated that he wanted to pay the money he owed and promised to repay the money if placed on probation. During final arguments, defense counsel stated Jones "knows that you will send him to jail if he doesn't abide by your orders" and urged the court to place Jones on "probation, deferred, whatever the court chooses." After finding Jones guilty, the court sentenced him to ten years in prison, but stated it would "retain jurisdiction or judicial authority over the matter for a period of 180 days. If the money — restitution is paid prior to the 180 days, if counsel would make that fact known to the Court, I will immediately place Mr. Jones on probation for the balance of the sentence." The record does not reflect a subsequent suspension of sentence and placement on probation. In his first issue, Jones argues his conviction must be reversed because the trial court failed to properly admonish him pursuant to Texas Code of Criminal Procedure article 26.13(a) prior to accepting his guilty plea, thus rendering the plea involuntary. In particular, he complains that he was given the maximum sentence yet was never told the minimum or maximum punishment. Even when a defendant's decision to change his not guilty plea to guilty comes after the State has put on most of its case, a trial court must comply with article 26.13(a) and admonish the defendant as to the consequences of the guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003). Article 26.13(a) requires the trial court to admonish a defendant, prior to accepting his plea, of (1) the punishment range, (2) the fact that the State's sentencing recommendation is not binding on the court, (3) the limited right to appeal in cases where the court follows a plea bargain, (4) the possibility of deportation, and (5) the fact he would have to register as a sex offender if the conviction was for a sex offense. Id. The purpose of the admonishments is to ensure the defendant enters his plea with full knowledge of the consequences. Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998). Although not constitutionally required, the article 26.13 admonishments assist the court in determining whether a defendant's guilty plea is voluntary. Id. Substantial compliance by the trial court is sufficient, unless the defendant affirmatively shows he was unaware of the consequences of his plea and was misled or harmed by the admonishments given. Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2003). Substantial compliance does not mean the trial must advise a defendant of every aspect of law relevant to his case or sentencing, only the direct consequences of entering a plea of guilty. Ruffin v. State 3 S.W.3d 140, 144-45 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Direct consequences of a plea are generally those listed in the article 26.13 admonishments. Id. Substantial compliance will be found if a trial court has undertaken to admonish the defendant, the sentence given was in the range prescribed by law, and the defendant has failed to affirmatively show harm. Hughes v. State 833 S.W.2d 137,140 (Tex.Crim.App. 1992). The record in this case does not show that the trial court ever admonished appellant, either orally or in writing, in accordance with article 26.13(a) prior to accepting appellant's plea of guilty. Accordingly, there can be no substantial compliance with the statute. The judge's total failure to admonish appellant violates the mandatory language of article 26.13(a) and constitutes error. Having concluded there is statutory error, we must next determine whether the error affected Jones's "substantial rights." See Tex.R.App.P. 44.2(b). We should not overturn a conviction unless, after examining the record as a whole, we conclude an error may have had a "substantial influence" on the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). Put another way, if the reviewing court has "a grave doubt" that the result was free from the substantial influence of the error, then it must treat the error as if it did. Id. Neither the defendant nor the State has any formal burden to show harm or harmlessness under rule 44.2(b). Id. 638. Rather, it is this Court's duty to assess harm after a proper review of the record. Accordingly, a conviction will be reversed on appeal "if the record shows that a defendant was unaware of the consequences of his plea and that he was misled or harmed by the trial court's failure to admonish him regarding the range of punishment." Id. Thus, we must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him on the punishment range or possibility of deportation. Id. The record must support "an inference" that the defendant did not know the consequences of his plea." Id. The reviewing court must evaluate the entire record to determine if "anything in the record suggests that a defendant did not know the consequences of his plea." A silent record will support that inference. Id. If Jones did not actually know that, at the maximum, the trial court could assess his punishment at ten years in prison, then the court's failure to admonish him about the range of punishment is certainly material. Appellant argues he was harmed because he did not know the consequences of his plea of guilty and was misled by the trial court into believing he would get probation if he entered a plea of guilty. The record before us lacks even a scintilla of evidence that Jones knew the punishment range. Jones signed no written admonishments indicating the punishment range. During arguments, while his attorney made reference to Jones getting probation and not being sentenced to "jail," no mention was made of the two-to ten-year range applicable. While the trial court made remarks to Jones regarding his ability to "do a lot to help himself," clearly the trial court and the attorneys, as evidenced by these remarks and the numerous docket settings, were anticipating Jones would repay the money. While the trial court did not overtly promise probation or even leniency to Jones, we cannot find any reference in the record to the alternative punishment which Jones ultimately received — ten years in prison. After conducting the harm analysis under rule 44.2(b) regarding statutory error, we conclude the record supports an inference that Jones did not know the consequences of his plea and that the failure of the trial judge to admonish him materially affected his decision to plead guilty. We therefore sustain his first issue. Further analysis under state and federal constitutional standards is unnecessary in light of our disposition of the statutory issue. See Tex.R.App.P. 47.1. We reverse the trial court's judgment and remand for a new trial.

Jones v. State

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Jones v. State

Jones v. State

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Jones v. State

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Jones v. State

Jones v. State

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