*1 437 C.J., OLIVER-PARROTT, Corp., 610 Before Capital Fort Moeller v. Worth COHEN, JJ. 857, (Tex.Civ.App. MIRABAL Worth S.W.2d — Fort Em n.r.e.); Kolb v. Texas 1980, writ ref’d Ass’n, 870, ployers’ Ins. OPINION 1979, writ ref’d (Tex.Civ.App. — Texarkana COHEN, Justice. n.r.e.). analysis, foregoing on the Based trial, right jury Appellant waived rehearing is John Hancock’s motion for aggravated robbery, and the pled guilty to denied. punishment at 18 trial assessed prison.
in We reverse. error, appellant con- point In his first failing in to trial erred tends the appellant as to the admonish NGUYEN, Appellant, Khan Phi robbery, as re- aggravated ishment for 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, guilty or nolo cepting a of: the court shall admonish the defendant Texas, Appeals (1) to 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. 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: Well, you that if must tell COURT: they you guilty possibility there is a find deported you, that if can be getting your citizenship, you were might that. Do under- terminate stand that? Yes, sir. ready proceed on Are
COURT: plea? Brass, Houston, appellant. Rick for Cameron, may pro- Holmes, Alright. The State
John B. Carol Hous- COURT: ton, appellee. for ceed.
438 honor, may compliance
PROSECUTOR: Your provi- ex- substantial with the sions of Art. 26.13. amine the witness. Id. at 159. Yes,
COURT:
Here, the State contends the fact the
today
PROSECUTOR: You are here
on
spoken by
judge
words were not
charge
aggravated robbery.
the
of
The
preclude
finding
does not
that the trial
aggravated robbery,
sentence for
it is a
responsible
giving
court was
for
the ad
degree felony,
first
and the sentence is
here,
judge
monishment. The trial
the
from a
years
minimum of five
and a
argues, implicitly adopted
prose
the
up
maximum of 99
or life and
appellant.
cutor’s admonishment of
For
twenty-thousand-dollar
fine. Do
re-
support,
State,
the State relies on Taylor v.
alize this?
(Tex.Crim.App.1979)
591 S.W.2d
830
State,
(op.
reh’g),
on
v.
737
Goodie
(Tex.App.
S.W.2d
38-39
[14th
added.)
— Houston
(Emphasis
1987),
(Tex.
affirmed,
tached to the offense. The statute is
giving
for
the admonishment and was
mandatory: it
not
does
allow the defense
satisfying
propriety
itself as to the
attorney,
prosecutor,
or the
or the clerk
appellant’s plea.
court,
anyone
judge
or
but
Id. at 830.
himself, to admonish the accused of the
Goodie,
prosecutor
In
punishment.
read the ad-
monishments to the defendant under the
This case differs
cases,
the courts found sub-
months after
ie.
those
more than seven
only
compliance
article 26.13
if he
guilty,
stantial
with
he was not asked
pleaded
the de-
admonished
because
wished withdraw
judge.
the instruction of the
fendant at
did not sub
We conclude that
Here, nothing in the record indicates the
*3
mandatory
comply
the
re
stantially
with
give the
judge instructed the
to
26.13(a). Therefore,
quirement of article
Rather,
typifies
this case
a
admonishment.
prove
appellant
required
is not
to
he was
practice
the court of criminal
26.13(c).
harmed, pursuant to article
Whit
Whitten,
Murray
to
in
and
fused
sanction
ten,
error one
See Hardman v. the United States of Amer- a citizen of (Tex.Crim.App.1981). Hardman, ica, guilty or contendere plea nolo admonished the defendant in charged may result for the offense immediately accepting after his Id. the exclusion from admis- deportation, here, however, The case differs from Hard- country, or to this the denial sion There, man. the record reflected the de- under federal law. naturalization given option fendant of withdraw- was (b) guilty plea or of nolo ing plea following plea admon- No belated yet accepted shall be the court punishment, ishment on the contendere is persisted pleading guilty. appears at 126. unless it that the defendant Id. mentally competent plea is free PROSECUTOR: And have ever been voluntary. psychia- under the care or treatment of a (c) In admonishing psychologist? the defendant as trist or provided, herein compliance substantial No, by the sufficient, court is unless the PROSECUTOR: show what has affirmatively shows that he defendant been marked as State’s No. Exhibit was not consequences aware you recognize Do this document? and that he was misled or harmed admonishment court. PROSECUTOR: Have had a chance (Vernon art. 26.13 Tex.Code Crim.P.Ann. go over this document with attor- 1989) (emphasis added). ney? *4 present case, In the him- Yes, DEFENDANT: sir. gave appellant self the admonishment cov- you fully PROSECUTOR: And do and 26.13(a)(4), ered namely, pos- article completely understand the document? repercussions sible of a conviction for a Yes, DEFENDANT: sir. Immediately non-citizen. after gave admonishment, court that the follow- PROSECUTOR: Towards the is bottom ing occurred: signature marked “defendant.” Is you ready proceed COURT: Are on your signature? plea? Yes, DEFENDANT: sir. Yes, DEFENDANT: sir. signature PROSECUTOR: And was COURT: Alright. The State may pro- freely voluntarily made? ceed. Yes, DEFENDANT: sir. prosecutor then covered admonish- ments PROSECUTOR: At this time the 26.13(a)(1) described in article (2), 26.13(b), and the moves to enter matter covered State’s Exhibit No. 1 into follows: evidence.
PROSECUTOR: You are today here objections, DEFENSE COUNSEL: No charge aggravated robbery. Your Honor. aggravated sentence for robbery, it is a THE COURT: It will be admitted. degree felony, first and the sentence is In my opinion, the clearly from a record indi- years minimum of 5 and a maxi- mum cates that the up of 99 or life trial court intended for the prosecutor twenty-thousand-dollar required fine. Do cover the admonish- alize this? ments. implies prose- The record that the cutor acted Yes, under instructions from the DEFENDANT: sir. trial court to admonish in accor- recognize PROSECUTOR: Do also dance with article 26.13. plea bargain agreement that the between the State and the defendant is not bind- is, therefore, This case similar to Goodie ing on this Court? v. (Tex.App . —Hous Yes, 1987), ton affirmed, 745 S.W.2d [14th Dist.] PROSECUTOR: And that if the Court (Tex.Crim.App.1988). Goodie, accepts— trial court instructed the to read DEFENSE COUNSEL: There no is required by the admonishments article 26.- bargain in this. receiving after the consent of the de right. PROSECUTOR: That’s You are fense counsel. The admonishments were correct. defendant, directed toward the inas your Is testimony today it are present case. The court of competent to stand here and make compli Goodie held there was substantial plea? ance with article Criminal Appeals agreed the case did not I conclu reach same merit reversal. case.1,2 present sion in the judgment. affirm the would DOVER, Appellant, E.
Richard BROWN,
BAKER, & PAR- SHARMAN Walker;
KER; Roger Robert C. C.
Jackson; Johnston, Jr.; Mel- H. Daniel CPA’s; Melton, and Robert L.
ton &
Erwin, Appellees.
No. 01-92-01193-CV. Texas, Appeals (1st Dist.).
Houston 17, 1993.
June at the procedure regarding giving 1. I this in effect time note that the If amendment had been Murray necessary signed affidavit in has the defendant State, admonishments been relaxed (Tex.Crim.App.1977), the an amendment to article somewhat 1, 1987, may appeal well have been August outcome effective which added section (d), different. follows: that, according (d) may make the 2. I also note to the statements of The court admonitions case, entry orally court deferred quired this article either or in writ- facts in this finding PSI/punishment guilt ing. a until the If the court makes the admonitions in of hearing. a writing, signed by pronouncement must receive a Prior to the it statement find- specifically attorney ing guilty, asked the trial court the defendant defendant’s maximum sen- if understood the he understands the admonitions and is imprisonment consequences for his life of his tence offense was aware of $10,000 fine; yes. sign appellant answered is unable or If the defendant refuses to statement, argues were therefore court shall the admonishments make the admo- timely orally. properly given by in a nitions 17, 1987, R.S., 443, Leg., comment on the merits of Act June 70th ch. fashion. decline to argument. § Tex.Gen.Law