Opinion
No. 04-02-00531-CR.
Delivered and Filed March 5, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the County Court at Law No. 5, Bexar County, Texas, Trial Court No. 802815. AFFIRMED.
Before Justices SARAH B. DUNCAN, KAREN ANGELINI, and SANDEE BRYAN MARION.
MEMORANDUM OPINION
Appellant Xavier Wheeler pled no contest to a misdemeanor charge of violating a court order enjoining organized criminal activity. Wheeler was sentenced to one year confinement in jail and a $4000 fine. On appeal, Wheeler argues that the trial court erred in failing to admonish him of the maximum range of imprisonment for this offense in violation of the United States Constitution. We disagree and affirm the trial court's judgment.
Background
Having been twice convicted, Wheeler was permanently enjoined by the trial court from associating with certain individuals involved with known gang activity. See Tex. Civ. Prac. Rem. Code Ann. § 125.065(a) (Vernon 1997). Wheeler was arrested on November 29, 2001 for congregating with one of these individuals and was later charged with violating the injunction. On July 17, 2002, Wheeler pled nolo contendere to the charge and signed a "Defendant's Waiver of Constitutional Rights and Court's Admonitions."Discussion
In a single issue, Wheeler contends that the trial court had a duty to admonish him of the maximum range of punishment, and by failing to so admonish, the trial court violated his constitutional rights. Article 26.13 of the Texas Code of Criminal Procedure requires that before accepting a plea of nolo contendere, the trial court must admonish the defendant of the range of punishment for the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2002). Wheeler concedes, however, that article 26.13 does not apply to misdemeanor cases. Alvear v. State, 25 S.W.3d 241, 246 (Tex.App.-San Antonio 2000, no pet.). Wheeler also concedes that even if article 26.13 did apply, the article allows for the admonishments to be made in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989). Here, Wheeler and his attorney signed a waiver acknowledging the full range of punishment for the offense. Nonetheless, Wheeler argues that due process requires the trial court to admonish him of the maximum range of punishment, even in misdemeanor cases. In support of his argument, Wheeler cites Ex parte Dumitru, 850 S.W.2d 243 (Tex.App.-Houston [1st Dist.] 1993, no pet.). Although explaining that there is no requirement that a trial court admonish an accused of anything if the offense is classified as a misdemeanor, the Dumitru court noted in dicta that an "exception to this rule exists for a defendant's due process right to know the maximum term of imprisonment where the sentence includes imprisonment." Id. at 244. In support of this assertion, the Dumitru court relied upon State v. Kanapa, 795 S.W.2d 36, 38 (Tex.App.-Houston [1st Dist.] 1990, no pet.), which in turn, relied upon McMillan v. State, 703 S.W.2d 341 (Tex.App.-Dallas 1985), rev'd on other grounds, 727 S.W.2d 582 (Tex.Crim.App. 1987). In McMillan, 703 S.W.2d at 344, the Fifth Court of Appeals held that although article 26.13 does not require the trial court to admonish a misdemeanor defendant, due process requires that such a defendant be aware of the punishment range. McMillan, 703 S.W.2d at 344; see also Tatum v. State, 861 S.W.2d 27, 29 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (same). According to the Fifth Court of Appeals, there is "no constitutional requirement that the trial court personally inform the defendant of the range of punishment. So long as the defendant is so informed, on the record, it is not constitutionally significant from what source he receives that information." Id. "Thus, a printed form signed by the defendant, containing the necessary information, or a statement, directed to the defendant by the prosecutor or defense counsel may suffice." Id. at 345. Upon review, the court of criminal appeals specifically declined to determine whether a misdemeanor defendant has a due process right to be informed of the punishment range before entering a plea. McMillan, 727 S.W.2d at 584. It did, however, specifically disavow any requirement that the trial judge inform the defendant of the punishment range on the record. Id. Side-stepping the issue, the court of criminal appeals held that the record clearly indicated that appellant had been informed of the punishment range:Appellant was advised of his rights with other defendants in court. Next, the Court asked appellant if he knew the range of punishment and appellant replied that he did. Appellant did not ask any questions when given the opportunity to do so, and thereby manifested some understanding of the punishment range. Last, appellant signed a waiver of rights which included a recitation that he knew the full range of punishment possible. We find that this record does affirmatively show that appellant was informed of the punishment range, and the Court of Appeals erred by finding otherwise.Id. Here, the record also shows that Wheeler was informed of the range of punishment. Wheeler signed "The Defendant's Waiver of Constitutional Rights and Court's Admonitions," indicating that he had read or had had read to him the admonitions and statements contained in the waiver and was aware of the consequences of his plea of nolo contendere. Wheeler's attorney also signed the waiver, indicating that he had fully explained the waiver to Wheeler and was satisfied that in each instance, Wheeler had voluntarily relinquished a known right and was aware of the consequences of his plea. The waiver clearly states that the range of punishment for Wheeler's offense was 0 days to one year confinement in jail and a $0 to $4000 fine. Moreover, in open court, the trial court asked Wheeler whether he had read, understood, and signed the waiver. Wheeler replied in the affirmative. The trial court then asked Wheeler's attorney if he was confident that Wheeler understood his rights and did indeed wish to waive them. Wheeler's attorney also replied in the affirmative. We, therefore, hold that the record does affirmatively show that Wheeler was informed of the maximum range of punishment and overrule Wheeler's sole issue.