*1 305 law, in in required by personam, manner court’s both rem and of the trial jurisdiction notwithstanding is invoked court, therefore, court. The was without actual notice of part the suit on the to act even power respect the in Janssen, defendant. See Shanbaum v. 582 aspects rem of the divorce the decree and 590, 1979, S.W.2d (Tex.Civ.App. be entirety. must declared void in its — Dallas writ). no Although the case Shanbaum Nancy point Heth’s second of error is not involve divorce we believe proceedings, sustained. the proposition stated therein to be equally is judgment reversed and cause applicable to proceedings in instant court those pro- remanded to case. ceedings still available to James Heth. James Heth relies on the following cases to support argument jurisdiction his
over the spouse resident empowers binding
court to render a valid decree respect to the “in rem” aspects of the Dosamantes, divorce: supra; Dosamantes v. Thornlow, Thornlow (Tex. v. S.W.2d 697 Civ.App. Corpus 1979), Christi cert. de — nied, U.S. S.Ct. 784; Butler, L.Ed.2d Butler supra; v. Comi Douglas WEST, Appellant, Samuel sky Comisky, 597 6 (Tex.Civ.App. S.W.2d 1980, writ). —Beaumont no We note that Thornlow, in Comisky and the non-resident Texas, Appellee. STATE spouse was process served with and there was no dispute as to the adequacy of the No. 01-82-0426-CR. Thornlow, service. Comisky, supra at 7 and case, supra at Texas, 698. the Butler the trial Appeals Court specifically use Dist.). authorized the of sub (1st Houston stituted upon service the non-resident Nov. 1983. Butler, spouse. supra at 504. In Dosa mantes, proceeding, a bill review
was no motion or concerning order substi
tuted service and the court concluded that spouse non-resident had not been prop
erly served under Rules 106 and 108. Dosa
mantes, at supra 237. The court held that improper service require did not rever sal granting court’s decree divorce in view the failure the non spouse resident to sustain burden of of a proof meritorious defense the origi nal divorce action. Dosamantes turned on proof
the failure of not to read as standing for the a lack of proposition that will
proper service not constitute reversible error.
The failure of James Heth follow the procedure pending for notification of the by moving obtaining
action or- authorizing der the use of ser- substituted upon vice Nancy Heth was a failure legally the potential jurisdiction, invoke *2 Schaffer, Houston, appellant. for
Randy Holmes, Jr., Speece, Elvin Ray John B. Houston, Bax, appellee. Richard DOYLE, LEVY, WARREN and Before JJ.
OPINION
LEVY, Justice. a conviction for appeal This from after en- rape. appellant, The aggravated guilty, a was sentenced tering Court, investiga- after a pre-sentence tion, confinement. years to 25 error, appellant ground In his sole not know- that his contends entered because he ingly voluntarily concern- legal advice upon relied inaccurate be assessed. that would ing punishment were and a co-defendant Appellant rape. His co-de- charged aggravated fendant, convicted previously who had been theft, by jury, a of auto was convicted to 25 years sentenced him offender. A as a second confinement later, judicial a con- signed month fession, rights his constitutional waiving This docu- the evidence. stipulating parties ment further stated recommen- agreed upon punishment dation, understood and that argue punishment prosecutor specific recom- making court without length of confinement. mendation as to confession, judicial executing Prior to in offer rejected the appellant had State’s recommend plea-bargain negotiations timely also Appellant 15-year sentence. probation. filed a motion for entered his him and the admonished open court and ascertained punishment as to was no understood punishment. recommendation agreed offered into The State and motion confession judicial written of de- inquired After the court anything on he “had counsel whether fense testi- probation,” question old, years, years fied that he was 28 assess at more than 15 married children, counsel, and, and had never been convicted of at the of defense requested He that the court con- felony. offer known plea-bargain had not made his duct a pre-sentence investigation prior to counsel testi- Appellant’s the court. assessing court found punishment. ap- he was aware that although fied that *3 pellant guilty aggravated of deferred rape, trial demon- the co-defendant’s weeks, sentencing for three and instructed inflicted most of the appellant strated that the to be appellant by pro- interviewed the abuse, that two he believed the physical bation officer. culpable. Al- equally defendants were had been sen- though the co-defendant hearing, At the punishment pre-sen- the offender, years tenced to 25 as a second investigation tence was admitted report reject appellant counsel advised the to trial report into evidence. The reflected the cir- he because offense, 15-year plea-bargain the offer cumstances of that ap- the showed le- that the court would be more pellant’s only believed prior conviction was for inter- a fering investigating appellant with an officer an because he was first acci- nient dent, Further, and that refer- that he appellant’s character offender. counsel stated ences regarded highly. probation him The appellant very good had a chance thought officer any past history was unable to find adjudica- receiving by of deferred probation behavior, of violent or catego- abusive and tion.
rized appellant as “excellent worker” it appellant Trial advised that counsel family, a “fine two young terrific recom- experience was his that the State’s wife, girls, home, remarkable and good sup- negotiations during bargain mendation port family of and neighbors”. punish- the “very good was a indication” of A psychiatrist testified as a defense wit- assess, ment the court would and that appellant ness that a treatable alcohol range punishment realistic in this case problem good prognosis, with a and no psy- estimation, be, would in his from deferred chological abnormalities. years. to less than 15 In his evidence, entry
At appellant prior the conclusionof the discussionswith the defense counsel asked that not placed guilty plea, on of the trial counsel did probation by adjudica- means of deferred realistic that would consider it the Court tion of guilt pursuant to art. at punishment years. assess more than 15 3d(a), (Vernon Tex.Code Crim.Pro.Ann. however, appellant, He told that 1979). prosecutor responded that it admonish to the full required was him as was “ridiculous” for the defense to believe (5 years, to 99 range possible punishment that appellant would be any considered for imprisonment, up and a fine of or life type probation, that no deals were made ?10,000). as to punishment, and that the court should testified that it was his under- Appellant a assess term lengthy of confinement. The re- guilty if and standing pleaded testimony reminded State ad- investigation, and quested pre-sentence trial, duced in the co-defendant’s wherein denied his for deferred evidence demonstrated that adjudication, physical beating had inflicted most of the certainly 5 8 and not more years, from to and abuse. not recall years. than 15 years The court sentenced 25 appellant to on understanding whether this was based confinement, the same sentence received by of what would opinion his trial counsel’s his co-defendant. made happen, representation or on said Appellant to his counsel. trial, his motion for new his trial counsel cited his co-defend- contended unknow- guilty plea prior explain dispari- conviction to ing involuntary. hearing At the on the ant’s motion, sentence and his attorney ty the assistant district testi- in the co-defendant’s expectations fied that he had never the court to sentence. asked 308
For
to be
guilty
knowing Upon entry
guilty plea,
the State
and voluntary,
it must be made with full
offered the motion for
into evi-
probation
understanding of the
finding appellant guilty,
relevant circumstanc
dence. Prior to
es
likely consequences. Boykin
testimony
v. Ala
the court heard
on the issue of
bama,
1709,
investigation
395
89
23
A pre-sentence
U.S.
S.Ct.
(1969);
Richardson,
274
L.Ed.2d
McMann v.
after
was ad-
was conducted
At
judged
prior
sentencing.
U.S.
but
guilty,
S.Ct.
L.Ed.2d
pre-sentence
(1970).
punishment hearing,
A
knowing
or
report
into evi-
voluntary
investigation
if made as a
was admitted
result
ineffective
dence,
Burns,
testimony
regarding
was heard
assistance of
Ex
parte
counsel.
appellant. At
psychiatric examination of
(Tex.Cr.App.1980).
S.W.2d 370
Where a de
evidence,
defense
counsel,
the conclusion
pleads
fendant
advice
*4
be
on
argued
placed
counsel
that
he must
the
appeal
demonstrate
that
probation
adjudica-
means of deferred
by
not
of
range
compe
advice was
within the
42.12,
guilt
of
art.
sec.
pursuant
tion
to
tence demanded of counsel
in criminal
for
3d(a), supra.
hearing
on motion
At
Richardson, supra.
cases. McMann v.
trial, appellant’s
new
counsel
reiterated
of an
adequacy
attorney’s services must be
very
thought appellant
that he had
had
gauged by
totality
representa
de-
good
by
receiving probation
chance of
State,
tion. Williams v.
ments and erroneous
advice. Cooks
States,
(5th Cir.1972).
United
fendant ineligibility torily ineligible probation and his coun State, See Ramirez v. 655 S.W.2d argues for, presents sel or in sup (Tex.App. Corpus Christi pet. no his — thereof, port the law require should tory). This would conform to the ABA trial to make appropriate admonish Criminal Justice, Standards for Pleas of State, ments. See Ramirez 655 S.W.2d Guilty, 14-1.4 (2nd Standard ed. 1982), 319 (Tex.App. Corpus pet. Christi no — provides which in part: history). (a) The accept plea court should not nolo contendere from a defend- ant addressing without first the defend-
ant personally in open court and deter-
mining defendant understands:
[*] [*] [*] : n [*] [*] (ii) the maximum possible sentence on
the charge, including possible from sentences,
consecutive and the manda- tory minimum if sentence, any,
charge, special or of any circumstances CONRAD, Appellant, Paul affecting probation or release from in- carceration; [emphasis added] ORELLANA, al., Appellees. Hernan I. et jurisdictions Other adopted have this No. 13-82-307-CV. State, Meyer
standard. See 95 Nev. (wherein 603 P.2d (1979) Appeals Texas, Court of stated at or not probation “[w]hether Corpus Christi. is available is to the critical defendant’s understanding of the consequences Nov. 1983. guilty plea. Therefore, when an offense is probational, district has a duty to insure that the record discloses
the defendant fact.”). aware judgment is reversed and the cause is
remanded to the court for a new trial.
WARREN, J., concurs. WARREN, Justice, concurring.
I reluctantly concur. The trial could have guilt deferred
under art. 3d(a), before he found appellant guilty. Under the circumstances however, expectation of
such a determination was so unreasonable as to render it nonexistent. But for the probation during
serious discussions of proceedings, which reinforced rather than