Garcia v. John Hancock Variable Life Insurance Co.
859 S.W.2d 427
Tex. App.
1993
Check Treatment

*3 indulged in of the non-movant and favor PEEPLES, GARCIA, Before BIERY and in its any doubt resolved favor. JJ. Management Property v. Mr. Nixon (Tex.1985); 546, Mont 690 S.W.2d OPINION 309, 310- Kennedy, v. gomery (Tex.1984). BIERY, 11 Justice. pleading

This is A appeal summary judgment of a defendant an affirma granted appellee may summary judg favor John Hancock tive defense obtain (John (1) Company by disproving Variable Life Insurance at least of the ment one Hancock). Garcia, plaintiff’s Appellant, Carmen of each of the causes elements (2) beneficiary, brought pro- conclusively proving suit or all ele to collect action ceeds of life insurance policy a ments of affirmative defense. See issued husband, Elecs., Korn, brings her Alfredo Garcia. She Inc. v. American Medical point 573, alleging (Tex.App. one of error the trial court 576 — Dallas 1991, denied); granting erred in v. John Hancock’s motion writ International Union Controls, Inc., summary judgment it failed to 813 because Johnson S.W.2d (Tex.App. denied); signed Mr. Garcia and an — Dallas Lesbrookton, Jackson, agent Company. Inc. v. Insurance On application, represented Mr. Garcia that he writ de — Amarillo had been for or nied). never treated had When a defendant moves for sum rep- known indication of He also diabetes. mary judgment basis of an affirma (1) resented that had not consulted a defense, expressly present tive must physician or been examined or at a treated conclusively prove each essential ele hospital facility or other medical within the of that Hughes, ment defense. Swilley (2) years; being last five treated (Tex.1972); City of taking physician any prescription Auth., Creek Houston Clear Basin (3) drug; personal physi- did not have (Tex.1979); Deer Creek cian. *4 Co., Ltd. North Am. 792 Mortgage 198, (Tex.App. 1990, 200 S.W.2d no 10, application, The second dated March — Dallas writ). 1986, Unless the movant/defendant con signed by was Garcia and a medi- Mr. clusively pursuant physical establishes affirmative de cal a examiner exami- fense, non-movant/plaintiff the has no bur nation this initiated John Hancock. On application, again repre- response summary den in a motion for second Mr. Garcia sented that he had been the an never treated filed on basis of affirma any or had indication also of diabetes. He defense. Casualty tive Torres v. Western responded, again, once that he not was Co., 50, (Tex.1970). 457 & Sur. 52 taking any under treatment of a or doctor A summary defendant moves for Further, prescription drug. he stated judgment on the basis of an affirmative any he had never been treated for or had plaintiffs defense when he denies the right indication that he of dizziness and did judgment, plaintiff even the estab cigarettes. smoke Mr. executed the Garcia every allegation pleadings. lished in its applications stating foregoing “the state- Contractors, Highway Inc. v. West Tex. my ments “to the and answers” are best of (Tex.Civ. 791, Equip. 794 belief, knowledge complete, and true 1981, writ). Here, App. John — Amarillo correctly recorded.”1 dispute Hancock does not Mrs. Garcia’s February 1987, approximately In of a allegations that the benefits due under the year policy the life was after insurance Rather, policy unpaid. instead of di issued, myocardial in- Mr. Garcia died of rectly attacking one more elements of farction, commonly referred to as a “heart action, Mrs. of Garcia’s cause John Han During litiga- attack.” the course of this Spe cock asserts an affirmative defense. tion, candidly Mrs. Garcia admitted that cifically, John Hancock based its motion for diagnosed having Mr. had been Garcia summary judgment premise that it injected diabetes in 1970 and had either relieved of its payment was benefit obli pills 1980, until when daily insulin or taken gations because Mr. intentionally Garcia Further, the went disease into remission. misrepresented state of the his health. experi- undisputed it is that Mr. Garcia was support In of its motion the encing dizziness around time he made judgment, John Hancock submitted the fol- fact, representations contrary. to the lowing: February in of March a on February had visited doctor husband, Garcia, appellant’s Alfredo ap- R. taking prescription 1986 and was medicine plied for and issued was a life insurance at the the diabetes time executed policy policy with John Hancock. In two application. During March the applications, doctor, Mr. a Garcia was asked series visit the Mr. Garcia re- with also questions regarding history. ported his cigarettes of health that he smoked fourteen application, February day. The first dated a 174R(I)VL Application,

1. is an dated contained Form of this amend- There Amendment 27, 1986, record, incorporates applica- was, according the March to the at- ment which dated A tion March 1986 into Part of the applications. tached to the February application. The execution is (Tex.App. summary judgment [1st Applying the — Houston 1982), rehearing denied, 657 S.W.2d of above facts standards discussed Dist.] n.r.e.), (1983, and Flowers whether John we must determine Am., misrep of its Ins. Co. each element United proved Hancock of 1991, no as a matter of law. Dist.] resentation defense [14th — Houston cred writ). bought a the insured law, Diggs, Texas there are five elements Under with policy it life simultaneous plead insurance insurance carrier must March purchase a new car on misrepresentation to establish a order applica In the 1980. 646 S.W.2d defense: insurance, Diggs that he tion for Mr. stated (1) making representation; good health and had “not suffered (2) falsity representation; disease, or other cardiovas any from heart (3) misrepresentation reliance Febru kind.” On cular diseases ... insurer; 15, 1981, Mr. died of cardiac ary (4) the part intent deceive on After arrhythmia, a heart condition. making misrepresen- the insured denied, his widow payment was claim for tation; and company brought The insurance suit. (5) misrepresenta- materiality granted, summary for, moved tion. mis upon judgment based the defense *5 Co., Mut. Mayes v. Massachusetts Ins. Life held representation. appeals The court of (Tex.1980) (emphasis conclu company’s proof that the insurance added). Assuming, deciding, ele- without knowingly sively showed deceased two, one, three and five were estab- ments his representation regarding made a false lished, requests this John Hancock court history: medical determine, juris- for first time in Texas O’Donnell, cardiologist, Dr. J. a Manus prudence, that “intent deceive” was met first by deposition that he testified summary for proven as a matter of law Hospital Diggs at Methodist Harvey judgment purposes. find the We affirma- 1976; Diggs com- that Mr. Houston tive defense raised John Hancock to be breath, swelling plained shortness of of a fraud; example, of fraud a form a blood; cough, spitting his legs, of chronic plaintiff brought by cause of action a also heart Diggs history had a that Mr. an element intent. has Stone v. Law- 1972; upon dating that back disease yers Corp., Title Ins. examination, Diggs Mr. was found (Tex.1977). Our has no re- research found failure with congestive have heart plaintiff suing ported Texas case in which a heart; that enlargement of the marked proven for fraud-has ever the element condition; there known cure for this is no deceive in a intent to as a matter law change not Diggs’ that Mr. condition did Further, summary judgment proceeding. 1980; that it from to March analogy, at least a we see some albeit patient Diggs’ unusual for a in Mr. (beyond proof standard of a rea- different longer years; five to live than condition doubt) guilty to the mens rea or sonable con- explained Diggs’ Mr. medical that he criminal It is mind element law. explained limita- him and dition to axiomatic, course, intent, that or mens impose on tions that the would condition rea, question the jury is a fact in a drugs were life-style; that various it to be rare criminal case. We think a disease; treat the prescribed to intent subjective where could be instance April he Mr. examined a e.g., as matter of law. established See significant degree of heart found 800, 816-17, Fitzgerald, 457 U.S. Harlow Diggs’ Mr. medical records failure. 2727, 2737-38, 102 S.Ct. 73 L.Ed.2d 396 doctor, that, on the advice of his show (1982). job disability from his took retirement that, These also show support argument, John Hancock records To insur- day application after the similar to the cases of on the contends case is Diggs received signed, ance Mr. Diggs Enterprise Ins. was Estate Life treatment for his heart condition at the company The insurance claimed Mr. Flow- Texas Medical Center. The examination ers’ problem admission of a health day on that Diggs’ prison revealed that Mr. intake form “when his medical care heart pronouncedly enlarged. proved was free” intent as a matter of law. not, determining it did the court stated: Further, at Id. 574-75. the court stated it The fact that Mr. Flowers admitted a any person was “inconceivable that with problem health Diggs’ when he was incarcerated history medical could fail to know simply TDC shows that he knew of his good was not in health or fail to know health conditions. The court held in suffering that he was then from a serious Diggs that misrepre- the fact that one heart ailment.” Id. at 575. Nevertheless sents one’s held, health condition is insuffi- the court cient to establish intent to as a deceive opinion We are of the may matter of law. We hold that mere presume an intent to deceive from the knowledge of one’s health condition is Diggs, fact that Mr. long with a history insufficient to intent to deceive as ailments, of heart made false statements a matter of law. The circumstances in application on his for insurance. Since this case would question raise a fact there is regarding no evidence Mr. might to Mr. Flowers’ A jury intent. deceive, Diggs’ intent knowledge well believe that his shows improperly granted. that he intended to deceive insur- [the added). (emphasis Id. at 576 company]. ance say But we cannot as a Am., Flowers v. United Ins. Co. of matter of law that this is true. [14th — Houston Id. at 786. 1991, writ), a similar result was Dist.] Here, argues John Hancock there are represented reached. The insured that he facts in present this case not in Diggs and had high pressure never had blood or “dis *6 Specifically, Flowers. it contends the fact ease or disorder of heart” in an insurance misrepresented that Mr. Garcia his health application executed sometime in Novem applications, on two February dated 25 and ber of represent 1987. Id. at 784. He also March 10 respectively, confirms his intent ed that he had hospital not been in a within to deceive representa- because both sets of past years. Later, five it was discover tions were made within two weeks of each ed Mr. having Flowers admitted high blood other, being with the first made less than a pressure Department in a Texas of Correc February week after began the date he tion years medical intake form three [TDC] taking prescription drug to treat diabe- and, fact, earlier had taken medication tes. for this condition years for two while incar Further, cerated. prison, while in Mr. initially We note that an issue of Flowers was hospital admitted to the material fact exists as to when the first injured during hospitalization wrist and his alleged misrepresentation was made in this diagnosed he was with borderline cardiome- Although application case. the first galy “enlargement 25, 1986, of the heart.” February appellant dated claims her questions husband answered the later, In approximately year one application, thereby making repre the first Mr. Flowers was killed a motor vehicle sentations, prior to his visit to the doctor on accident. As in this his widow February 1986. Because we must take brought suit as beneficiary to collect the as true evidence favorable to the non-mov- proceeds policy under the and the insur- appellee, ant and resolve doubts in her fa company granted summary judg- ance vor, we cannot conclude John Hancock is misrepresen- ment based on the defense of factually correct as a matter law. Nix parties agreed tation. Because the all ele- on, 548-49; at Montgomery, S.W.2d except ments intent to deceive were estab- at 669 S.W.2d 310-11. lished, only issue before the court of appeals compa- Further, was whether the argu- insurance even if John Hancock’s ny correct, established intent to factually deceive. Id. at 785. ment is agree we do not conclusion on the opinion deceive shows an and proven it has intent to as a matter personal number, rather than part appellant, of the upon frequency of law based asserts, knowledge. Hancock alleged As John proximity misrepresenta- of the testimony, es judgment affidavit tions the medical treatment. John Han- to witness, must from an interested summary judgment proof pecially is almost cock’s Light knowledge. upon personal be based presented identical that Weissgarber, Diggs, the court the fact Flowers.2 In held foot denied). 1989, writ Antonio misrepresents that one’s health condi- one — San Testimony upon “belief” not suffi tion is to establish intent based insufficient testimony cient. See id. (holding that deceive of law. 646 at as a matter Flowers, knowledge on and belief of the In the court held mere based best 575-76. requirements knowledge health in- affiant not meet strict of one’s condition is does 166a(e)). language Such prove intent as of law. of Tex.R.Civ.P. sufficient to matter Id. at true, unqualifiedly repre positively If the fact that Mr. fails to Garcia problem sent that the “facts” to be disclosed was told of a health within close Brownlee, See Brownlee answering questions pro- true. proximity (Tex.1984); Hagar v. Texas pounded simply Hancock by John shows Distrib., (Tex.Civ. Inc., If that he knew of his health condition. true, App. Tyler Ac the fact that he made state- false — application cordingly, crosspoint one is sustained. ments on more than one shows that he misrepresented his health condition. two, crosspoint John Han Flowers, As fact noted the court (c) argues objection cock follow company proved that in- the insurance ing have been sustained: language should problems sured about his health “knew my It rate husband was at before concerning prob- made false statements visited Dr. Koli. lems does not as a matter law that making argument, John Hancock to deceive com- intended insurance [the contends, appeal, time on the first pany].” jury 786. While a not state how Mrs. Gar the affidavit does may very proven find intent to well deceive familiar her “personally cia became with evidence, preponderance The to Dr. Koli.” failure husband’s visit hold John Hancock failed to intent establish affidavit object to form of the law. Appellant’s deceive as a matter of personal ground not show it does point of is sustained.3 error *7 knowledge in waiver the com results crosspoints two, and In one John Indep. Prairie Sch. See Grand plaint. Hancock the trial in contends court erred Vaughan, Dist. v. overruling objections to the amended affi Ngoc Giao v. Smith & (Tex.1990); Nguyen appellant, Objec davit of Mrs. the Garcia. Lamm, (Tex. P.C., (b) following language: tion was to the writ); App. Dist.] [1st — Houston I believe we met with Mr. Peralta on Corp., Hilton Hotels Walkoviak v. 5,1986 (as per February letter from John (Tex.Civ.App . —Hous Company Insurance Hancock attached ton In [14th Dist.] part though and made a hereof set motion, objected to the Hancock John length). forth at conclusory hearsay testimony as above added). trial, husband told her.” (emphasis appeal, At and “based on on what [her] waived its com John contends the word Because John Hancock Hancock “believe” two, Diggs Although counterpoint John Hancock the dissent finds and Flowers 3. In contends third, second, page Brief in the distinguishable, “On fourth and 19 of her factually we see the facts of page, paragraphs Appel- said fifth equally egregious Flowers to be to this and appears the lant estoppel to be defense of asserts what Nevertheless, case. there was not sufficient misrepresentation to defense.” use the summary judgment proof in those cases to es- Hancock Because held John failed we have to deceive as a law. tablish intent matter of prove each the defense as element of matter law, issue. we do not reach this plaint testimony upon objected were to and no that the is not based statements personal knowledge, hearsay given support argu grounds and because were her testimony, is not inadmissibility. Accordingly, evident face of the ments testimony we cannot assume Mrs. Garcia’s objections proper were not appellant’s hold any my that “It rate husband crosspoint was at before ly specific and sustain three. an upon visited Dr. Koli” was based inad judgment of the trial court is re- The missible made out-of-court statement and the cause is for fur- versed remanded Crosspoint her husband. two is overruled. proceedings. ther crosspoint three, Han John PEEPLES, Justice, dissenting. cock the in contends trial court erred sus taining objections, made in appellant’s affirm and hold I would Response Plaintiff’s Motion Defendants’ misrepresentation evidence shows that the Judgment, Summary to the affidavit of as a matter of law. objection Appellant’s Cesar I. Gonzales. deceive, issue of On the intent 5(c) (which “Item” or was sustained as to shows the told his treat- evidence insured 4) paragraph provides: in ing problems doctor about his mid-Febru- statements, among The affidavit contains ary compa- he did not tell insurance but which are Item 4 statements ... and ny problems about same treatment affidavit would not which be admissible applied for life insurance on when evidence at the time of trial taking prescription 10. He March was case. very for the time medicine condition at 5(d) (which Appellant’s objection was sus- examining denied that he to the insurance 8) paragraph tained as to “Item” or states: taking doctor that he was medicine! specu: The contains affidavit matters words, had In other at a time when he part lation and conclusion on the seeing that he a doc- fresh awareness among speculations and affiant tor, taking medication, being treated conclusion are included statements diabetes, things he denied these Item 8 of the affidavits not which would examiner, company who would insurance be admissible evidence. purchase life determine whether he could sum, things insurance. admitted Specifically, appel John Hancock contends 5(c) treating denied to doctor that he his objection general lant’s was too just 5(d) examining insurance doctor a few objection incorrectly sustained be examining He doctor point part weeks later. told the cause it “does out what doctor, seeing that he was not another even parts speculative 8 are what Item error, treating had doctor though he seen the less parts preserve are conclusions.” To taking month before was still objection specific must than one state prescribed by grounds requested medicine him. ruling, for the these grounds apparent from context are not together, undisputed Taken these facts *8 Tex.R.App.P. 52(a). A objection. of the misrepresentation a matter of law as specific objection “is one which enables the distinguish the case from and precise trial court to understand the Flowers, on majority which the relies. grounds ruling, so to make an informed offering affording party opportunity the MOTION ON APPELLEE’S defect, possible.” remedy the McKin REHEARING FOR Co., 772 ney v. National Union Fire Ins. BIERY, Justice. 72, (Tex.1989); McNabb S.W.2d 74 see also rehearing for in Kentucky Cent. Ins. 631 John Hancock’s motion Life 253, disposition (Tex.App. 255 Worth vites this court to reexamine — Fort 1982, writ) proceeding (objection summary judgment filed in in affidavit of this summary judgment proceeding light must be Hancock Mut. Ins. Co. of John Life specific). present (Tex.Civ.App.— is Esparza, In the it not v. 286 S.W.2d 695 1955, apparent appellant’s objection which from San Antonio writ

435 for and traditional exception to the usual Esparza, permitted his insur the insured whereby procedure witnesses premi mal non-payment of a lapse ance to for proof documentary open court and thereafter, heard in um, submitted the insurer into evidence.” and received is offered application for reinstatement. to him an 158, Allen, Richards v. form, 402 S.W.2d filling the the Id. at 696. out When summary judgment should health, (Tex.1966). A (1) in sound stated: he was insured affi deposition or a trial not amount to pay in (2) during period the of his default the rela by weighing davit, resolved from or be had not suffered ing premium the conflicting facts such, strength of the tive symptoms of any disease or had Hamman, 163 Tex. Gaines inferences. (3) or treated had not consulted been 557, (Tex. 626, fact, 618, 358 S.W.2d practitioner. physician or other 1962). way: Stated another doctors and was he had been to seven the cancer of daily treatment under into the com- originally introduced [A]s chest; bone, hands, two months arms and summary proceedings system, mon-law state days he made the and two after in in cases ... which not available were Id. ments, of cancer. tend, the insured died justice in to all very nature their development parties, require the full brought cancel the The insurer suit to trial, including jury the facts on a of all misrepresenta- policy alleging fraudulent of all available wit- examination court Id. at 695-96. jury, Trial to a tion. nesses, friendly, impartial, or whether misrepre- found that the insured’s the purpose It the adverse. not] [is intentionally made. sentations were not existing provide “to a substitute rule argued Id. appeal, at 696. On the insurer the trial issues methods in of fact disregard jury answers on its motion to the anticipatory deter- way vere- furnish judgment intent and for non obstante questions law.” mination granted dicto should have been because Underwriters, Highway Ins. uncontradicted evidence was that the false Pattison v. made. Es- intentionally 694, (Tex.Civ.App statements were . —Galves parza, omitted) re- n.r.e.) (citation 286 S.W.2d at 696. This court 1956, ref d ton writ sup- the record “for viewed evidence” (emphasis original). intent, porting jury on lack of answers reasons, pre For these determined: but proof that are sumptions and burden of judgment The motion for non obstante trial are imma applicable to a conventional granted. veredicto should been We have by the movant to the burdens faced terial conclude, event, finding in any judgment in a and non-movant against there was no intent to deceive is R.R. v. proceeding. Missouri-Kan.-Tex. overwhelming preponderance Dallas, (Tex. City of evidence. Sunnyvale, v. Town 1981); Mayhew Id. Accordingly, (Tex.App. — Dallas of the trial court was and ren- reversed denied, cert. denied), U.S. Id. canceling policy. at 697. dered (1991) (pre 112 L.Ed.2d 1049 111 S.Ct. gov validity usually afforded sumption of Esparza, plaintiff Unlike to affir cannot be used ernmental decisions in this not had the the insured case has summary judg matively movant’s sustain jury of a trial.1 The law in Texas benefit attacking constitutional ment burden when summary judgment is a well settled generally ordinances); see ity zoning remedy strictly harsh which must be con Judgments Timothy Summary Stores, Patton, Bryant v. Winn-Dixie strued. (1992). example, For the bur Inc., 1.02 § Texas *9 — Fort denied, seeking sum denied), cert. 1990, den on a defendant/movant Worth writ 498 1090, plaintiff’s a cause of 1126, mary judgment on 111 112 L.Ed.2d 1194 U.S. S.Ct. the defen (1991). pro the same burden summary This is because a action is not trial, satisfy must to obtain an instructed ceeding is “not a conventional but an dant case, may Esparza then have an effect. 1. If John Hancock suffers an adverse verdict in 436 support plaintiff’s

verdict in a trial on the merits. is “no evidence” to See Les 276, brookton, Jackson, id; allegations. Inc. v. 796 S.W.2d see also Gibbs v. Gen See 1990, 827, (Tex.App. Motors, 285-86 writ de 450 828 Corp., eral — Amarillo nied) (while on (Tex.1970) absence evidence one (question appeal is whether might plaintiff’s element of fraud claim proof as a summary judgment establishes verdict, entitle defendant to instructed it genuine no of material matter of law issue summary would not entitle defendant to exists, proof raises fact fact whether Stores, judgment); Flores v. H.E. Butt issue). however, practice, a de federal Inc., 160, (Tex.App 791 S.W.2d moving summary judgment fendant . —Cor 1990, denied) (motion pus Christi writ for may discharge by showing that his burden summary judgment incorrect to extent support there is no evidence to one or more based on “no evidence” directed verdict plaintiff’s case. elements Interna standard). the defendant is entitled While Aerospace tional Ass’n Machinists & plaintiff to an instructed if the verdict fails Co., Mfg. v. Intercontinental Workers on one element of his introduce evidence 219, (5th Cir.1987); generally F.2d see the defendant is not entitled to a Timothy Summary Judgments Patton, summary judgment the failure of based on (1992).2 Texas § 5.03[2][c] 5.03[2][c] plaintiff to sustain the it would burden general In addition to this caution have at a trial on the merits. See State v. ary approach summary judgments, Tex Seventeen Thousand and No/100 Dollars recognized great as courts have even 637, (Tex. Currency, 809 S.W.2d U.S. considering er care should be taken when 1991, writ) (dis App. Corpus Christi no — cate summary judgment motions select cussing plaintiffs distinction between fail gories litigation. As in our discussed ure to raise fact issue and defendant’s con original opinion, “summary judgment has clusively disproving claim). plaintiff’s appropriate rarely been viewed as when the Even the defendant’s motion for sum judge, mary judgment represents proof inherently jury is one for a demon issue intent, reliance, strating plaintiff involving un likely will lose a as in cases trial, damages, certainty, unliquidated directed and dis verdict defendant is Timothy Judg Summary summary judgment not entitled to a Patton, based cretion.” (1992)(emphasis plaintiff’s on the weakness of the claims. ments in Texas 1.02 add § Co., ed); Assocs., Jones v. General Elec. see also El Paso Ltd. J.R. (Tex. (Tex.Civ.App. Paso Thurman & — El writ); way, App. Stated another the de Paso no Dan Lawson — El Miller, fendant in state court is not entitled to a & Assocs. v. writ); summary judgment merely because there Worth — Fort Brand, Supreme ently fenses,” In Casso v. the Texas Court unmeritorious claims and untenable de- rejected argument expressly that state law and we never shift the burden places, place, proof or should the identical burden to the non-movant unless and until the "establish[edj placed a which is on the non-movant in a federal movant has his entitlement to expressly summary proceeding stating: summary judgment on the issues presented by conclusively court to the trial Summary judgments in federal courts are proving all essential elements of his cause of assumptions, based on different purposes, with different action or defense as a matter of law.” summary judgments than in Texas. system, "[sjummary judgment In the federal Moreover, overriding policy we see no rea- properly regarded procedure not as disfa- summary modifying shortcut, sons for our procedural vored but rather as an whole, the common law. While standards under integral part of Federal Rules as a urged adopt have us to designed just, some commentators speedy 'to secure approach the current federal inexpensive every determination of ac- Thus, judgments generally, pro- our place responsibili- believe own tion.’ federal courts patently cedure eliminates unmeritorious ties on both movants and non-movants in the summary giving regard right judgment process....” while due for the cases law, course, jury disputed ques- is different. While determination of fact Texas similar, language of our rule is our inter- tions. (Tex.1989) (citations pretation language is not. We use 776 omitted). summary judgments merely pat- "to eliminate *10 C.J., OLIVER-PARROTT, Corp., Before Capital Fort Moeller v. Worth COHEN, JJ. (Tex.Civ.App. MIRABAL Worth — Fort Em n.r.e.); Kolb v. Texas writ ref’d Ass’n, ployers’ Ins. OPINION 1979, writ ref’d (Tex.Civ.App. — Texarkana COHEN, Justice. analysis, foregoing Based trial, right jury to a Appellant waived rehearing is John Hancock’s motion for aggravated robbery, and the pled guilty to denied. years judge punishment at 18 trial assessed prison. We reverse. error, appellant con- point

In his first of failing judge trial erred tends the range pun- appellant as to the admonish NGUYEN, Appellant, Khan Phi robbery, as re- aggravated ishment art. 26.- quired by Tex.Code Crim.P.Ann. (Vernon 1989). 13(a)(1) Texas, Appellee. The STATE 26.13(a)(1) to ac- provides: “Prior Article No. 01-92-00868-CR. contendere, plea guilty or nolo cepting a of: the court shall admonish the defendant Texas, Appeals Court (1) range punishment attached (1st Dist.). Houston offense_” Tex.Code CRIm.P.Ann. June 1993. (Vernon 1989). 26.13(a)(1) art. Discretionary Refused Review Here, following occurred: Oct. You This is an indictment. COURT: against you. you Do accusation

have the reading of the indictment? waive the Yes, sir. DEFENDANT: sum- right. All The Court will COURT: They say County, marize it. Harris you committed the 16th, 1991, that April property with intent offense of theft use. your personal own to subvert it in the States? you born United Were No, sir. DEFENDANT: you Are an American citizen? COURT: No, DEFENDANT: sir. What?

COURT: No, DEFENDANT: sir. Well, you I that if must tell

COURT: they you guilty possibility there is a find deported you, that you can be getting your citizenship, you were might you that. Do under- terminate stand that? Yes, sir.

DEFENDANT: ready proceed on you Are COURT: plea? Brass, Houston, appellant. Rick Yes, DEFENDANT: sir. Cameron, may pro- Holmes, Alright. The State

John B. Carol Hous- COURT: ton, appellee. ceed.