Opinion
No. 01-09-00218-CR
Opinion issued October 1, 2009. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 349th District Court Houston County, Texas, Trial Court Cause No. 04-CR-038.
Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
MEMORANDUM OPINION
In 2004, appellant, Frank Preston, Jr., pleaded guilty to two counts of the offense of injury to a child. Pursuant to the State's punishment recommendation, the trial court sentenced appellant to 10 years in prison, suspended for 10 years' community supervision and a $1,000 fine. In 2008, the State filed a motion to revoke in which it alleged six violations of the terms and conditions of appellant's community supervision. Following appellant's plea of true to five of six of the State's allegations, the trial court revoked appellant's community supervision and sentenced appellant to eight years in prison and assessed a $1,000 fine. This appeal followed. In his sole issue, appellant contends that his plea of "true" to the State's revocation allegations was not voluntary because the trial court failed to inform him of the "consequences of his plea." More precisely, appellant contends that the trial court did not inform him that he could be sentenced to a maximum of 10 years in prison. Code of Criminal Procedure article 26.13 requires a court to admonish a defendant of the applicable punishment before accepting a plea of guilty or a plea of nolo contendere. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon 2009). Article 26.13 applies only when a defendant enters a plea of guilty or nolo contendere in a felony prosecution. Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003). The Court of Criminal Appeals has determined that article 26.13 does not apply to "probation" revocation proceedings. Id.; see also Lanum v. State, 952 S.W.2d 36, 39 (Tex. App.-San Antonio 1997, no pet.). Here, appellant cites only Article 26.13 to support his contention that the trial court erred in failing to admonish him of the maximum incarceration that he could receive. Because article 26.13 does not apply to revocation proceedings, appellant's argument is without merit. In any event, the record does not support appellant's claim that the trial court failed to advise him that he could be sentenced to 10 years in prison. To the contrary, the record shows the complete opposite of that claim. Based on the allegations in the indictment, appellant was charged and convicted of two counts of third-degree felony injury to a child. See TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (Vernon Supp. 2008). The maximum incarceration a defendant may receive for a third-degree felony is 10 years in prison. See TEX. PENAL CODE ANN. § 12.34 (Vernon 2003). The record shows that, before appellant pleaded true to any of the State's revocation allegations, the trial court informed appellant that he could be "sentenced up to ten years incarceration." Appellant indicated to the trial court that he understood the admonishment. We overrule appellant's sole issue and affirm the judgment of the trial court.
See TEX. PENAL CODE ANN. § 22.04(a)(3) (Vernon Supp. 2008).
Appellant pleaded not true to the State's allegation that he violated the terms and conditions of his community supervision by cohabitating with a woman who had a minor child. Following an evidentiary hearing, the trial court found that the State had not met its burden to show that appellant had violated this term. Based on appellant's plea of true to the State's other five allegations, the trial court found those allegations to be true.
Pursuant to Government Code section 73.001, the Supreme Court of Texas has transferred this cause from the Twelfth Court of Appeals to the First Court of Appeals. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005).