                                                                                 PD-0844-15
                       PD-0844-15                              COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 7/9/2015 11:55:55 AM
                                                                  Accepted 7/9/2015 4:58:47 PM
                                  PD-                                            ABEL ACOSTA
                                                                                         CLERK


              TO THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS


VINCENT MONROW FRIEMEL                                         APPELLANT
V.

THE STATE OF TEXAS                                             APPELLEE


                           Appeal from Rusk County
                       4TH District Court No. CR-14-192
                                ********

                            Sixth Court of Appeals
                              Texarkana, Texas
                             No. 06-14-00185-CR
                          2015 Tex.App. LEXIS 779
                                ********

      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                                ********




                                          EBB B. MOBLEY
                                          State Bar # 14238000
                                          Attorney at Law
                                          422 North Center Street-Lower Level
                                          P. O. Box 2309
        July 9, 2015
                                          Longview, TX 75606
                                          Telephone: 903-757-3331
                                          Facsimile: 903-753-8289
                                          ebbmob@aol.com
                                          ATTORNEY FOR APPELLANT
                                       TABLE OF CONTENTS
                                                                                                             Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

IDENTITY OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . .4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

QUESTIONS FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
APPENDIX: Sixth Court of Appeals No. 06-14-00185-CR, slip. op. June 19, 2015




                                                         1
                     IDENTITY OF THE PARTIES

APPELLANT:      Vincent Monrow Friemel
                Inmate #1972868
                Hutchins Unit TDCJ-ID
                1500 East Langdon Road
                Dallas, Texas 75241


APPELLEE:       The State of Texas

TRIAL JUDGE:    Honorable Clay Gossett
                4th Judicial District Court
                Rusk County Courthouse
                115 North Main, Suite 303
                Henderson, Texas 75652
TRIAL COUNSEL FOR APPELLANT:
             Daryll Bennett
             Attorney at Law
             P.O. Box 2645
             Longview, Texas 75606

APPELLATE COUNSEL FOR APPELLANT:
             Ebb B. Mobley
             Attorney at Law
             P.O. Box 2309
             Longview, Texas 75606

TRIAL COUNSEL FOR THE STATE:
             Zack Wavrusa
             Rusk County Assistant District Attorney
             115 North Main, Suite 302
             Henderson, Texas 75652

APPELLATE COUNSEL FOR THE STATE:
             Michael E. Jimerson
             Rusk County District Attorney
             115 North Main Street, Suite 302
             Henderson, Texas 75652

                Lisa McMinn
                State Prosecuting Attorney
                P.O. Box 12405
                Austin, Texas 78711


                                     2
                                      INDEX OF AUTHORITES

Cases

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L Ed. 2d 274 (1969) . . . . . . . .5,7
Mitschke v. State, 129 S.W.3d 130 (Tex.Crim. 2004) . . . . . . . . . . . . . . . . . . . . . . . . .7

State v. Kersh, 127 S.W.2d 775 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . . . 7

Statutes

Code of Criminal Procedure Art. 26.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,7
Code of Criminal Procedure Art. 26.13(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Code of Criminal Procedure Art. 26.13(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Penal Code §1.07(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Other

George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice &
     Procedure §40.22 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6




                                                           3
                                   PD-
                  TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS


VINCENT MONROW FRIEMEL                                           APPELLANT
V.

THE STATE OF TEXAS                                               APPELLEE


                                     *****
       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                                     *****


TO THE HONORABLE COURT OF CRIMINAL APPEALS:
      Appellant respectfully urges this Court to grant discretionary review.
             STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument.
                         STATEMENT OF THE CASE

      This is an appeal from a conviction for evading arrest with a motor vehicle.
Vincent Monrow Friemel pled guilty at a bench trial without a plea bargain. He
was sentenced to nine years confinement, and an affirmative finding was made that

a deadly weapon (a motor vehicle) was used during his commission of the offense.

      Friemel initially complained that the deadly weapon finding eliminated his

eligibility for judge-ordered community supervision and extended his eligibility for

parole until he has actually served one-half of the confinement portion of his
sentence.

      In this court Friemel appeals only the lack of a parole eligibility admonition.



                                         4
                STATEMENT OF PROCEDURAL HISTORY
      The Sixth Court of Appeals issued its published opinion on June 9, 2015. No

motion for a hearing was filed.


                          QUESTIONS FOR REVIEW

      Did the Court of Appeals err in holding that there is no requirement under Code

of Criminal Procedure Art. 26.13 to admonish a defendant on the consequences of a
deadly weapon finding on his future parole eligibility?

      Did the court of appeals misapply Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23L Ed. 2d 274 (1969) in this case?




                                         5
                                   ARGUMENT
                               STATUTES AT ISSUE

      Texas Code of Criminal Procedure Article 26.13(a)(1) provides that prior to

accepting a plea of guilty or a plea of nolo contendre, the trial court shall admonish
the defendant of the range of punishment attached to the offense.

      Article 26.13(c) provides that in admonishing the defendant substantial
compliance by the trial court is sufficient, unless the defendant affirmatively shows

that he was not aware of the consequences of his plea and that he was mislead or
harmed by the admonishment of the court.

                                OPINION BELOW

      The court of appeals found that the trial court substantially complied with

Code of Criminal Procedure Article 26.13(a)(1) in its oral and written admonishments

to the defendant during his plea before the court. The opinion found that “substantial
compliance” shifted the burden to the defendant to show that he was harmed or

misled by the trial court’s admonishments. op. pp. 8-9.
      But the opinion errs in finding substantial compliance with statutory as well as

constitutional requirements.

      Specifically the court held at page 6 of its opinion:
      Yet, a deadly-weapon finding does not affect the length of the
      defendant’s sentence, only how much of that sentence he will
      actually serve before he can apply for parole. Consequently,
      a deadly-weapon admonition is not necessary under Article
      26.13 to protect a defendant from being “induced to plead guilty
      by and understatement of the seriousness of the offense” and
      “being punished more severely than the trial court held out as
      the maximum he or she could receive.” Id. (quoting 43 George
      E. Dix & Robert O. Dawson, Texas Practice: Criminal
      Practice & Procedure §40.22 (2011).
Further at opinion p. 12:

      Since neither the United States Supreme Court

                                          6
      nor the Court of Criminal Appeals has held that a defendant
      must be admonished regarding the range of punishment in
      order to satisfy due process, we see no basis for holding that
      due process requires the defendant to be admonished
      regarding the additional consequences of a deadly-weapon
      finding on his eligibility for community supervision and
      release on parole. Therefore, the Boykin presumption does
      not apply to Friemel’s plea.


                                    ANALYSIS
      The term “deadly weapon” is defined in Penal Code §1.07(17): a firearm or

anything manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury, or anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury. But “deadly weapon” findings are
not part of a sentence. See State v. Kersh, 127 S.W.2d 775 (Tex.Crim.App. 2004).

      But the effect of a deadly weapon finding on parole eligibility is a definite,
practical, immediate and automatic consequence - a direct punitive consequence
specifically provided by law. Mitschke v. State, 129 S.W.3d 130 (Tex.Crim. 2004).

      Completion or discharge of a sentence including confinement is foremost in
the mind of every defendant at his sentencing. Any factor that actually delays his

eligibility for release from confinement should be part of a plain language explanation
and admonishment by a trial judge.            Art. 26.13 requires certain specific

admonishments as to immigration and sex offender registration warnings.
      Omission of any warning about delayed parole eligibility simply does not

meet the requirements of Boykin v. Alabama, 395 U.S. 238 (1969).

      The failure to admonish appellant about the consequences of a deadly weapon

finding on his required confinement prior to parole eligibility violates due process
and renders his plea involuntary.




                                          7
                            PRAYER FOR RELIEF
      WHEREFORE, Appellant prays that the Court of Criminal Appeals grant this

Petition for Discretionary Review, that the case be set for submission after full
briefing, and that after submission, this Court reverse the decision of the Court of

Appeals and remand the case for a new trial.



                                      Respectfully submitted,


                                      EBB B. MOBLEY
                                      Attorney at Law
                                      422 North Center Street-Lower Level
                                      P. O. Box 2309
                                      Longview, TX 75606
                                      Telephone 903-757-3331
                                      Facsimile 903-753-8289
                                      ebbmob@aol.com



                                      /s/ EBB B. MOBLEY
                                      EBB B. MOBLEY
                                      Attorney for Appellant
                                      State Bar License # 14238000




                                         8
                      CERTIFICATE OF COMPLIANCE
      I certify that this brief contains 1072 words according to the computer

program used to prepare the document.


                                        /s/ EBB B. MOBLEY
                                       EBB B. MOBLEY




                         CERTIFICATE OF SERVICE

      I certify that on the 9th day of July, 2015, the Appellant’s Petition for
Discretionary Review was served via efile to:



Michael E. Jimerson
Rusk County District Attorney
115 North Main Street, Suite 302
Henderson, Texas 75652
michael.jimerson@co.rusk.tx.us

Lisa McMinn
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
information@spa.texas.gov




                                       /s/ EBB B. MOBLEY
                                       EBB B. MOBLEY,
                                       Counsel for Appellant




                                          9
          APPENDIX

      NO. 06-14-00185-CR

 VINCENT MONROW FRIEMEL

               V.

     THE STATE OF TEXAS

PUBLISHED OPINION JUNE 99 2015

    2015 Tex.App. LEXIS 5779
6,15201&                                                        Frlaie V.   side, 2015 let App. LEXIS 5779

i   LexisAdvanc& I I
    Research                                                                   4                                                                More -



    Document: Friemel v. State, 2015 Tex. App. LEXIS 5779                          Actions



                                                       Pesultslist 4 Previousdocument Nextdocurnent




                                             Friemel v. State, 2015 Tex. App. LEXIS 5779




                                                     Court of Appeals of Texas, Sixth District, Texarkana


                                                       April 7,2015, Submitted; June 9,2015, Decided


                                                                    No. 06-14-00185-CR
      Reporter

      2015 Tex. App. tEXtS 5779



      VINCENT MONROW FRIEMEL, Appellant v. THE STATE OF TEXAS, Appellee



      Notice: PUBLISH.



      Prior HIstory: [1] On Appeal from the 4th District Court, Rusk County, Texas. Trial Court No. CR14-192.



      Core Terms

      trial court, admonish, guilty plea, admonitions, community supervision, consequences, deadly-weapon, sentence, due process, eligibility, parole,

      confinement, argues, attorney's fees, involuntary, requires, arrest, harmed, motor vehicle, misled




        Case Summary



        Overview

        HOLDINGS: [li-Tex. Code Chrn. Proc. Ann, art. 26.13 did not require the trialcourt to admonish defendant regarding the effects of any plea
        on eligibility for community supervision or for release on parole; [2]-Since a deadly weapon finding does not affect the length of a
        defendant's sentence, only how much a defendant will actually serve before he is able to apply for parole, a delay weapon admonition
        was not necessary under Article 26.13 to protect defendant from being induced to plead guilty by an understatement of the seriousness of
        the offense and being punished more severely than held out as the maximum; [3}-Due process did not require the trial court to admonish
        defendant on the consequences of a deadly weapon finding; [41-Contrary to defendant's daim, the trial court did no assess attorney fees
        against defendant.




        Outcome

        Judgment affirmed.




        v LexisNexis® Ileadnotes



                                                                                                                                                         118
&'1&201&'                                                      Frie'S V. Stae, 2)15 Tat Pop. LEXIS 5779


        Criminal Law & Procedure > ... > Entry of Pleas. > Guilty Pleas. > Allocution & Colloquy

        LftllSTex. Code Crim, Proc. Ann. art. 26.13 states that before accepting a plea of guilty or a plea of nolo contendere, the court shall
        admonish the defendant of the range of the punishment attached to the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1).      Shevardize -
        Narrow by this 1-leadnote




        Criminal Law & Procedure > ,.. > Entry of Pleas. > Guilty Pleas. > Allocution & Colloquy.

               When a defendant is admonished on the original, unenhanced, lesser punishment range and then receives a sentence under the
        enhanced punishment range, the risk Is that the defendant was induced to plead guilty by an understatement of the seriousness of the
        offense and haying done so, was harmed by being punished more severely than the trial court held out as the maximum he or she could
        receive. Sheoa,-dize - Narrow by this 1-leadnote




        Criminal Law & Procedure > Sentencing.> Sentencing Alternatives .> Community Confinement.

        Criminal Law & Procedure > ... ,. Entry of Pleas .> Guilty Pleas .> General Overview.

        I1NL   Where it is not an agreed sentencing recommendation as part of a plea bargain, a defendant has no tight to conTnunity
        supervision. Shenardize - Narrow by this Fleadnote




        Criminal Law & Procedure> ... > Entry of Pleas • > Guilty Pleas .> Allocution & Colloquy.

        H!14S Substantial compliance with Tex. Code Cdm. Proc. Ann. art. 26.13 by the trial court is sufficient, unless the defendant affirmatively
        shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Te x .
        Code Crim. Proc. Ann. art. 26.13(c) (Supp. 2014). Sheoardize - Narrow by this Headnote




        Criminal Law & Procedure > ... > Entry of Pleas.> Guilty Pleas .> aKnowinci & Intelligent Requirement.

        Criminal Law & Procedure > ,.. > Entry of Pleas.> Guilty Pleas, > OVoluntanness,

        Criminal Law & Procedure> ... > Entry of Pleas, > Guilty Pas . > Allocution & Colboguy.

        Evidence > Burdens of Proof'.> Burden Shifting.

        HfS The finding that a defendant was properly admonished creates a prima facie showing that the defendant's guilty plea was knowing
        and voluntary. Although the defendant may still pursue a claim that his plea was involuntary, the burden shifts to the defendant to show
        that he did not fully understand the consequences of his plea and that he was misled or harmed by the admonition.       Sheoardize - Narrow
        by this Headnote




        Evidence > ... > Spresunttions. > Particular Presumptions.>

        Criminal Law & Procedure > ,.. > Entry of Pleas .> Guilty Pleas • >aknowing & Intellioent Reouiremerit'.

       Criminal Law & Procedure > ... > Entry of Pleas .> Guilty Pleas .> OVoluntariness.

       Iffi* Tex. Code Crim. Prgc. Ann. art. 26.13 establishes a rebuttable presumption that the defendant entered a knowing and voluntary
        plea when the record clearly reveals that the trial court properly admonished the defendant as to the consequences of his
        plea. Shecardize - Narrow by this Headnote




     Judges: Before Morriss ., C.)., Moseley • and Burgess., B. Opinion by Justice Burgess..



     Opinion by: Ralph K. Bumess.




t*S'JI&tWceAeAS.GOnYdOcLnI*PIXhtUd= 1000516&thth9tdO-967d-446c[-9E2-61437t387e2&pddocMlpath=%2Fstwed%2FcJoctjtent%2Fcases%2Fu... 216
Sf1 51201&                                                        Frlerel vt SIS 2015 Ta App. LOOS 5779


      Vincent Mon row Friemel pled guilty to evading arrest using a motor vehicle, a third degree felony, and pled "true to the allegation that in
      committing the offense, he used or exhibited a deadly weapon, namely, a motor vehicle. The trial court accepted Friemel's guilty plea and his
     jury waiver and, after a punishment hearing, sentenced Friemel to nine years' confinement in the Texas Department of Criminal Justice
      Correctional Institutions Division. In this appeal, Frieniel asserts that the trial court erred in not admonishing him regarding the consequences
     of a deadly-weapon finding   TTAI thereby rendering his plea involuntary. We find no error in the trial court's admonitions and affirm the judgment
     of the trial court.




      I. Background

      The charges against Friemel arose from his attempt to avoid arrest on March 25, 2014. On that day, Texas Department of Public Safety Trooper
      Ricardo Fabbiani was travelling north on Loop 571 in Rusk County. He observed the vehicle driven by Friemel approaching him with its right turn
      signal activated. When Friemel turned left onto County Road 203, Fabbiani followed him and activated his overhead lights and siren. Friemel
      Red, accelerating to speeds of eighty miles per hour on the two-lane county road. As Fabbiani pursued him, Friemel tossed a loaded shotgun
      out of his vehicle which, after bouncing on the pavement, hit and shattered Fabbianrs windshield. Shortly thereafter, Fabbiani slid off the road
      and hit a mailbox and fence because of his limited visibility, and Friemel escaped. After losing Fabbiani, Erlemel pulled into a parking lot where
      he and his passenger fabricated a story and hid the contraband in their possession. They then drove to another parking lot and called the
      police. After Fabbiani arrived, Friemel was arrested [3] and charged with multiple offenses.

      On September 15, 2014, Frlemel executed a document waiving his right to be tried by a jury, waiving his right to confront and examine
      witnesses, and entering his plea of guilty to the crime of evading arrest with a motor vehicle. He also acknowledged receiving the admonitions
      required by Article 26.13(a) of the Texas Code of Criminal Procedure from the trial court. See Trx, Cr CRh,, P,wc. ANN. art. 26.13(a (West Supp.
      2014). The written admonitions identified the range of punishment for the charged offense as confinement "for any term of not more than 10
      years nor less than 2 years" and indicated that "a fine may be imposed not to exceed $10,000." Immediately below the range of punishment,
      the admonitions contained a paragraph advising that "{i}f community supervision is granted, the Court shall determine the terms and conditions
      of community supervision

      The trial court also orally inquired whether Friemel understood that the range of punishment was confinement for "not more than ten years or
      less than two years and a fine not to exceed $10,000.' Friemel affirmed his understanding of the applicable range of punishment. The trial court
      never mentioned community supervision, but confirmed that Friemel understood [4] that he was pleading guilty without an agreement
      regarding punishment and that, in the hearing to determine his punishment, the trial court would have the entirety of the applicable
      punishment range available to it. The trial court confirmed that Friemel understood he had a right to be tried by a jury and that he understood
      the State's burden of proof should he elect a jury trial. Then, after confirming that no one had forced, threatened, or coerced Friemel or
      promised him anything in exchange for his plea, the trial court accepted Friemers guilty plea.

      The State then asked the trial court to make sure that the guilty plea would "satisfy the deadly weapon allegation in the indictment." After
      Friemel's counsel advised that Friemel was "pleading guilty to the indictment," the trial court asked Friemel if he understood that the indictment
      included "an allegation that the manner and means of the intended use is capable of causing death or serious bodily injury with an automobile.
       .?" Friemel indicated that he understood and affirmed that he was "pleading true and guilty to that, also." The trial court then adjudicated him
      guilty of evading arrest with a motor vehicle and found that [5] a deadly weapon was used in committing the offense. Approximately one
      month later, the punishment hearing was held, and the trial court affirmed its guilt adjudication and deadly-weapon finding and sentenced
      Friemel to nine years' confinement. When asked whether he had anything to say as to why the sentence should not be imposed against him,
      Friemel responded, "No, sir."




      U. There is No Requirement to Admonish a Defendant on the Consequences eta Deadly-Weapon Finding

      Friernel argues in this Court that since the trial court failed to admonish him of the consequences of a deadly-weapon finding, his guilty plea was
      rendered involuntary. Friemel posits that under Boykin V.A/sterna. 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), the record must show
      that he possessed "a full understanding of what the plea connotes and of its consequence" before this Court can find that his plea was
     voluntary. See id. at 244. Although not completely clear, Friemel also appears to argue that the trial court was required by Article 26.13(a)(1) of
      the Texas Code of Criminal Procedure to admonish him regarding the legal principles articulated in Boykin. See Tex. Coor CRIM. PRoc. Mw. art.
      26.13(a)(1), The State, on the other hand, argues that Article 26.13 sets forth the mandatory admonitions and that only the range of
      punishment admonition was required, which does not [6] include a parole admonition. The State argues that the record shows Friemel
      received the required admonitions and that this constitutes a prima facie showing that his guilty plea was voluntary. See Martinez v. State. 981
      S.W .2d 195. 197 flex. Cflrn. Ago. 1998. Assuming the State is correct, the burden would then shift to Friemel to show that his plea was not
      voluntary. See Id. We will first address the claim under Article 26.13(a)(1).




     A. Article 26.13



NljtJ/ScalSs.cmldocmeitflxhiiid= 1O5l6&alth9                          7d-44"61437S387e2&pcoctilpath=%2Fstaed%2Fdoctntt%2Fcases%2Fu... 3(6
6(151201&                                                        Frienl v Stft 2015 Tex App. LEGS 5779
     Friemel argues that Article 26.13 of the Texas Code of Crhtnal Procedure requires a trial judge toad mon is h a defendant regarding the effect a
     deadly-weapon finding would have on his eligibility for parole and community supervision. HNlTArticle 26.13 states that before "accepting a
     plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of: (1) the range of the punishment attached to the
     offense." Trx. Coor CRIM. PRoc. art. 26.13(a)(1). On its face, Article 26.13 does not require the trial court to admonish the defendant regarding the
     effects of any plea on eligibility for community supervision orfor release on parole. Friemel cites no authority, and we have found no authority,
     holding that Article 26.13 requires trial courts to admonish defendants on the effects a deadly-weapon finding could have on eligibility for
     community supervision and/or parole.

     Moreover, the policy reasons underlying Article 26.13's admonitions do not [7] support Friemel's argument. Texas courts have recognized that
     the admonitions required by Article 26.13 are "intended to facilitate the entry of adequately informed pleas of guilty or nolo contendere."
     Davison v, State. 405 S.W.3d 682. 687 flex. Crirn. Apo. 2013). In other words, the point of admonishing a defendant is to ensure that he
     understands the charges against him and the consequences of his plea, and one of the consequences of his guilty plea is that he may suffer
     being sentenced to confinement within a certain range of years. Thus, Article 26.13 exists to ensure a defendant understands the amount of
     confinement he faces by going forward with his guilty plea. Accordingly, as this Court has previously recognized, HN2T when a defendant is
     admonished on the original, unenhanced, lesser punishment range and then receives a sentence under the enhanced punishment range,
     "[t]he risk, is that the defendant was induced to plead guilty by an understatement of the seriousness of the offense and having done so,
     was harmed by being punished more severely than the trial court held out as the maximum he or she could receive." Seagraves p. State. 342
     S.W.3d 176. 181 (Tax. Aoo.—Texarkana 2011, no oat.) (quoting 43 George F. Dix & Robert 0. Dawson, Texas Practice: Criminal Practice&
     Procedure § 40.22 (2011)).

     Yet, a deadly-weapon finding does not affect the length [8] of the defendant's sentence, only how much of that sentence he will actually serve
     before he can apply for parole. Consequently, a deadly-weapon admonition is not necessary under Article 25.13 to protect a defendant from
     being "induced to plead guilty by an understatement of the seriousness of the offense" and "'being punished more severely than the trial
     court held out as the maximum he or she could receive.'" Id. (quoting 43 George E. Dix & Robert 0. Dawson, Texas Practice: Criminal Practice &
     Procedure § 40.22 (2011)).

     Likewise, while community supervision involves either the suspension of the imposition of a sentence or the deferral of an adjudication of guilt,
     see Trx. Ccor cmM. Pgoc. MN. art. 42.12,62(2) (West Supp. 2014); Tex. GoV , Coor kIN. 6508.001(6) (west 2012), neither the imposition of
     community supervision nor the defendant's eligibility for it affects the range of punishment that the defendant may suffer. Moreover, HN,IY
     where it is not an agreed sentencing recommendation as part of a plea bargain, a defendant has no right to community supervision. See
     Leopard p. State, 385 S.W.3d 570. 576 (Tex. CrTht ADD. 2012) (noting that "defendants are not entitled to community supervision as a matter of
     right'). Therefore, the fact that a deadly-weapon finding may render a defendant ineligible [9] for community supervision, see Trx. Cece Cxxi.
     PROC. Na. art. 42.126 3q(aW2), does not affect the length of his sentence, only whether he can ask the court to suspend the sentence or defer
     adjudication of the offense. Because he never had a right to receive community supervision in the first place, there is no risk that Friemel was
     induced into pleading guilty by a false expectation of community supervision.

     In addition, as Friemel acknowledges, HN4Y substantial compliance with Article 26.13 by the trial court "is sufficient, unless the defendant
     affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the
     court." Tr.. Coor CRIM. Pxoc. ANN, art. 26.13(c) (West Supp. 2014); see Martinez. 981 S.W.2d at 197: Seagraves. 342 S.W.3d at 181. Hem, Friemel
     was charged with evading arrest using a motor vehicle, a third degree felony. Both the written and oral admonitions of the trial court advised
     him that the range of punishment was confinement for "not more than 10 years or less than 2 years" and 'a fine not to exceed $10,000," which
    is the correct range of punishment for a third degree felony. See Try. PEPLAL Coor A.th, 6 12.34 (west 2011). The actual sentence imposed was
    within this range. Therefore, we find that the trial court [10] substantially complied with Article 26.13(a)(1i and that Friemel was property
    admonished.

    HNST The finding that Friemel was properly admonished creates a prima facie showing that his guilty plea was knowing and voluntary.
    Martinez. 981 S.W.2d at 197. Although he may still pursue a claim that his plea was involuntary, the burden shifts to Friernel to show that he did
    not fully understand the consequences of his plea and that he was misled or harmed by the admonition. Id. The record demonstrates that
    Friemel failed to meet that burden.ft  Friemel points us only to his testimony during the punishment hearing in which he testified in support of
    his application for community supervision. However, he does not contend that he had a plea agreement for community super -vision. Rather, he
    testified that he was asking the trial court to put him on community supervision. Further, he testified that nobody forced, threatened, or
    coerced him or promised him anything to plead guilty. He also acknowledged that he understood the range of punishment and that the trial
    court had the entire range of punishment available to it. Therefore, we find that Friemel has neither rebutted the prima fade showing that his
    plea was voluntary, nor shown that he was harmed [11] or misled by the trial court's admonitions. See Thomas v- State. 2 S.W.3d 640. 642
    (lex. App.—Dallas 1999. no pet.).




    B. Boykin and Due Process


    Friemel next argues that the Due Process Clause of the Fourteenth Amendment to the United States Constitution required the trial court to
    admonish him of the effect of deadly-weapon finding on his eligibility for parole or community supervision and that, in the absence of that
    admonition, his right to due process was violated, thereby rendering his plea involuntary under Boykin. That case, however, involved a guilty
    plea by a defendant who was not admonished (12] and who never addressed the trial court (making it difficult to ascertain whether his plea
    was knowingly and voluntarily entered). Boykin. 395 U.S. at 240. In such a case, the guilty plea was held to be involuntary since the record
    failed to "disclose that the defendant voluntarily and understandingly entered his pleas of guilty.' Id. at 244. Boykin, however, did not


                                                                                                                                                             46
6(15l2O15                                                         Frienel v State, 2015 T& Aw. LEXIS 5779
     specifically state what the record must disclose to satisfy due process, 'except to say generally that state courts should make sure that a
     guilty-pleading defendant 'has a full understanding of what the plea connotes and of its consequence."          Aguirre-Mata v, State. 125 S.W.3d 473.
     475 (Tex, Crim. ADD. 2003) (quoting Boykin, 395 U.S. at 244).

     As Friemel points out, the Court of Criminal Appeals has stated,

            Boykin operates like a rule of default: Unless the appellate record discloses that a defendant entered his guilty plea 'voluntarily
            and understandingly[,]" a reviewing court must presume that he did not, and rule accordingly. Boykin, 395 U.S. at 244....[W]e
            regard the rule of Boykin to be in the nature of a systemic requirement, imposing a duty on the trial court to make the record
            demonstrate the knowing and voluntary quality of a guilty plea.

     Davison. 405 5.W.3d at 690. So, on one end of the spectrum,       UE16T Article 26.13 establishes a rebuttable presumption that the defendant
     entered a knowing and voluntary [13] plea when the record clearly reveals that the trial court properly admonished the defendant as to the

     consequences of his plea. Bo ykin, on the other hand, operates at the other end of that spectrum and essentially creates the opposite, inversely

      proportional presumption: namely, Boykin establishes a rebuttable presumption that the defendant did not enter a knowing and voluntary plea

      when the record Is "devoid of any indication that the defendant possessed 'a full understanding of what the plea connotes and of its
      consequences." Id. (quoting Boykin, 395 U.S. at 244). Therefore, we must examine the record and determine whether there is any Indication

     that Friemel fully understood what his plea involved and the consequences of that plea. Id. at 691-92.

      In addition to the written and oral admonitions previously discussed, Friemel signed the following documents: Admonitions of the Court,
      Statements and Waivers of the Defendant, Certification and Agreement of the Attorneys, and Order of the Court. These documents contained
      written admonitions regarding the rights of trial by jury and confrontation, which were both addressed by Bo ykin . Frlemel waived both of these
      rights. In addition, the trial court orally admonished him [141 that he did not have to plead guilty, that he was presumed innocent, and that he
     did not have to prove his innocence. The United States Supreme Court has upheld the validity of a guilty plea that was preceded by far fewer
      admonitions than those given in this case. See Brady v. United States. 397 U.S. 742, 743-44 n.2. 905. Ct. 1463.25 L. Ed. 2d 747 (1970).[
     The record, then, is not completely silent as to whether he understood the consequences of his plea.

     Yet, Friemel does not argue that he received no admonitions as in Boykin, only that what he did receive was insufficient. The question, then, is
      whether, under Boykin, the record must also disclose that Friemel understood the consequences of a deadly-weapon finding to avoid triggering
     Boy/c/n's presumption that his plea was involuntary. See Davison. 405 S.W.3d at 592. Again, [15] Friemel cites, and we have found, no
     authority to support this proposition.

      Moreover, in Aguirre-Mata, the Court of Criminal Appeals noted, "Boykin clearly did not hold that due process requires the equivalent of the
     Article 26.13(a) admonishments or an admonishment on the range of punishment."[Acv/rre-Mata, 125 S.W.3d at 475. The court went onto
      point out that

            the Supreme Court In McCarthy v. United States, which was decided during the same term as Boykin, expressly stated that the
            admonishments in the federal equivalendi4]ofArticle 26.13(a) have 'not been held to be constitutionally mandated" and that
            these admonishments are 'designed to assist the district judge in making the constitutionally required determination that the
            guilty plea was truly voluntary." See McCarthy v. United States. 394 U.S. 459.89 S.Ct. 1166.1170-71,22 LEd.2d 418 (1969). No
            subsequent Supreme Court decision has held that these admonishments are "constitutionally mandated."

     Id. at 475-76. Since neither the United States Supreme Court nor the Court of Criminal Appeals has held that a defendant must be admonished

     regarding the range of punishment In order to satisfy due process, we see no basis for holding that due process requires the defendant to be

     admonished regarding the additional consequences ofa deadly-weapon finding on his eligibility for community supervision           (161 and release on
     parole. Therefore, the Boykin presumption does not apply to Friemel's plea.

     Consequently, we find that neither Article 26.13 nor due process required the trial court to admonish Friemel on the consequences of a deadly-
     weapon finding. Accordingly, the trial court did not err in failing to do so. We overrule Friemel's first point of error.




     M. The Trial Court Did Not Assess Attorney Fees Against Friemel

     Friemel also complains of a document signed and filed by the trial court determining that he is indigent and that the cost of legal services
     provided to him [17] through trial was $600.00. Although the document is titled 'Order,' it does not order Friemel to pay any attorney
     fees.{j Friemel fears, however, that the trial court may enter a "future ex parte nunc pro tunc assessment of attorney fees,' Citing Cates         V.
     State, 402 S.W.3d 250. 251-52 (Tex, Crim. ADD. 20131. Filemel argues that a trial court may not assess court-appointed attorney fees against
     an indigent defendant unless there is proof and a finding that the defendant is no longer indigent.

     We agree that if the trial court had assessed court-appointed attorney fees against Friemel without a determination that he was able to re-pay
     those costs, the trial court would have erred. See Cates. 402 S.W.3d at 251-52. However, no such assessment was made in this case. At most,
     the order merely determines the cost of the legal services provided to Friemel. It contains neither a determination that Friemel is able to repay
     any of that amount nor an assessment of those fees against Friemel. Further, the Nunc Pro Tunc)udgment of Conviction entered by the trial
     court tour weeks after the signing of this order assesses $249.00 in court costs against Friemel. Friemel does not [18] contend, and there is


                                                                                                                                                              56
w1&2q15'                                                           FrSl v. Ma 2015 Tat App. LEXIS 5779

       no evidence in the appellate record to support the contention, that this assessment of costs includes any court-appointed attorney fees. Since
       Friemel has not shown any error on the part of the trial court, we overrule this point of error.

       We affirm the judgment of the trial court.

       Ralph K. Burgess,

       Justice

       Date Submitted: April 7, 2015

       Date Decided: June 9, 2015

       Publish



         Footnotes

          [jFriemel complains of two consequences that resulted from the finding that a deadly weapon was used or exhibited during the
           commission of a felony. First, the finding eliminated Friemel's eligibility forjudge-ordered community supervision. SeeT€x. Coor Cnn. Prn.
           Pin.. art. 42.12. 4 3o(aY2) (West Supp. 2014). Second, the finding (2] extended Fnemel's eligibility for parole until he has actually
           served one-half of his sentence. See TEX. COlT Coor Ann. § 508.145(d) (West Supp. 2014).


          []Citing Burnett v. State. 88 5.W.3d 623. 638 (Tex. Crirn. ADD. 2002). Friemel argues that we are to review the entire record to
           determine whether he was aware of the consequences of his plea or whether he was misled orharmed by the courts admonition.
           However, in Burnett, the trial court "wholly failed to admonish appellant regarding the applicable range of punishment." Id. at 637. In
           such a case, we conduct a ham analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure, under which neither the
           defendant nor the State has the burden to show harm or harmlessness. Burnett. 88 S.W.3d at 638; Tn. It App. P. 44.2(b). Where, as
           here, the trial court has duly admonished the defendant, Article 26.13(c) requires the defendant to "affirmatively show[] that he was
           not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." TEX. Coor Csai. Psoc.
           Ann. art, 26.13(c); Martinez, 981 S,W.2d at 197.


                  Brady, the trial court gave the following admonitions to the defendant:

                    -lE COURT: You understand that in [pleading guilty) you are admitting and confessing the truth of the charge contained in
                  the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?
                  'DEFENDANT BRADY: Yes, your Honor.
                  'THE COURT: And you do do that?
                  'DEFENDANT BRADY: Yes, I do.
                   THE COURT: You plead guilty to the charge?
                  'DEFENDANT BRADY: Yes, I do.'

           Brady. 397 U.S. at 743-44 n.2.


          IIlThe court also noted that "[w]e have found no Supreme Court case holding that due process requires a trial court to admonish a
           guilty-pleading defendant on the range of punishment or holding that a trial court's failure to admonish a guilty-pleading defendant on
           the range of punishment renders the guilty plea invalid." Aaolne-Mata. 125 S.W.3d at 475 n.7; see also Davison. 405 S.W.3d at 692.


          [iisee FED. It Cmii. P. 11. Although the current version of Rule 11 provides that the trial court inform the defendant of 'any maximum
           possible penalty, including imprisonment, fine, and term of supervised release," the version in effect at the time of the McCarthy decision
           did not contain this provision. FED. It Cmii, P. 11(b)(I1fl-1).


          fThe operative portion of the order states, "THEREFORE, the Court ORDERS the defendant to pay s_as court costs.'




   Jump
           i?1J S                                                                       ID




   '       tLe,dsNexis'




                                                                                                                                                         66
