No. 05-10-01194-CR
Opinion Filed June 27, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-41307-W.
Before Justices O'NEILL, FRANCIS, and MYERS.
Opinion By Justice MYERS.
Robert Douglas Simpson pleaded guilty before a jury to aggravated robbery with a deadly weapon, a firearm. After finding appellant guilty, the jury assessed punishment at twenty-two years' imprisonment. In a single issue, appellant contends the trial court erred by failing to admonish him on the range of punishment. We affirm. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
Background
On the day his case was called for a jury trial, appellant told the trial court he intended to plead guilty and wanted the jury to assess punishment. The trial court did not admonish appellant on the range of punishment. During voir dire, however, the attorney for the State explained that the punishment range for the offense was between five to ninety-nine years' or life imprisonment. The State's attorney referred to this punishment range eight times while questioning the venire. When appellant's counsel addressed the venire, he also discussed the range of punishment, on three separate occasions, and specifically discussed the five-year minimum and life maximum of the range. After the jury was seated, the prosecutor read the indictment and appellant entered a plea of guilty. The trial court instructed the jury to find appellant guilty, then the parties presented punishment evidence. During his testimony, appellant acknowledged that he understood the jury had a "wide range to look at" in assessing punishment. During closing argument, appellant's counsel again recited the range of punishment for the offense. At no time did appellant seek to withdraw his plea. Applicable Law
Article 26.13 of the Texas Code of Criminal Procedure provides before accepting a plea of guilty or nolo contendere, a trial court shall admonish the defendant on the range of punishment. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (West Supp. 2010); Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007). Substantial compliance is sufficient unless a defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the court's admonishment. Tex. Code Crim. Proc. Ann. art. 26.13(c). A trial court does not substantially comply with article 26.13 if the judge wholly fails to give an admonishment. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). A trial court's failure to give a proper admonition is subject to a rule 44.2(b) harm analysis. Bessey, 239 S.W.3d at 813. That rule states: "Any other [than constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b); Bessey, 239 S.W.3d at 813. In applying Rule 44.2(b) to a failure to admonish, we consider the record as a whole to determine whether the error affected the appellant's substantial rights. Bessey, 239 S.W.3d at 813; Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). Discussion
Appellant contends the trial court erred by not admonishing him as to the range of punishment, and that his decision to plead guilty would have changed had the trial court admonished him in compliance with article 26.13. The State concedes the trial court did not properly admonish appellant as to the range of punishment, but argues that appellant suffered no harm as a result because it is clear from the record that appellant was well aware of the range of punishment. A trial court's failure to admonish on the range of punishment does not affect a defendant's substantial rights where the attorneys, with a defendant present, explain the specific range of punishment to the venire during voir dire. See Burnett, 88 S.W.3d at 635, 640 (where record was "replete with statements concerning the applicable range of punishment," trial court's failure to admonish on the issue, although clearly erroneous, was harmless); Gamble v. State, 199 S.W.3d 619, 622 (Tex. App.-Waco 2006, no pet.) (prosecutor's explaining punishment range to defendant and attorneys' discussion of punishment range during voir dire rendered harmless trial court's failure to admonish on punishment range). Here, the record shows the attorneys for both sides thoroughly went over the punishment range with the venire during voir dire in appellant's presence. Thus, appellant had notice of the punishment range before he entered his guilty plea in front of the jury. We conclude the trial court's error in not admonishing appellant on the punishment range was harmless because it did not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b); Burnett, 88 S.W.3d at 641. We resolve appellant sole issue against him. We affirm the trial court's judgment.