       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-01-00303-CR


                              Daniel Rodriquez Ortiz, Appellant

                                                v.

                                 The State of Texas, Appellee



    FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
           NO. 4770, HONORABLE BEN WO ODWARD, JUDGE PRESIDING




               In November 2000, appellant Daniel Rodriguez Ortiz pleaded guilty to the felony

offense of retaliation, see Tex. Pen. Code Ann. ' 36.06 (West Supp. 2002), enhanced with two

prior felony convictions. As part of his plea agreement, the district court deferred adjudication

of guilt and placed appellant on community supervision for ten years. In May 2001, after a

hearing on the State=s motion to revoke, the court revoked appellant=s supervision, adjudicated

him guilty, and imposed a sentence of imprisonment for twenty-five years.

               Appellant contends the district court failed to properly admonish him of the range

of punishment during his guilty plea. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(a) (West

Supp. 2002). In his sole point of error, appellant argues that, because the range of punishment

for his offense as enhanced was twenty-five to ninety-nine years instead of the fifteen to ninety-

nine year range as he was admonished, the trial court committed reversible error. Because
appellant failed to demonstrate that he was harmed by the incorrect admonishment, we affirm the

judgment.1


                                            DISCUSSION

                   The Code of Criminal Procedure sets forth at article 26.13 the necessary

admonishments that must be given to a criminal defendant in a felony guilty plea. See id. art.

26.13. The pertinent sections of article 26.13 state:


       (1) Prior to accepting a plea of guilty . . . the court shall admonish the defendant
           of:

             (1)    the range of punishment attached to the offense;

                                           ***    ***    ***
       (c) In admonishing the defendant as herein provided, substantial compliance by
           the 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.


Id.

                   Relying on Martinez v. State, 953 S.W.2d 804 (Tex. App.CCorpus Christi 1997),

rev=d, 981 S.W.2d 195 (Tex. Crim. App. 1998), appellant urges that an incorrect admonishment

as to the range of punishment at a guilty plea must necessarily result in the reversal of his

probation revocation. Appellant is correct that the facts of Martinez are similar to this case.

There, the court of appeals reversed Martinez=s conviction, holding that his initial plea of guilty

was not voluntarily made because he was incorrectly admonished as to the maximum range of


1
       Arguably, this contention should have been raised in an appeal from the original plea
proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). The State
does not raise this issue and we do not address it.
2
punishment for his offense. Id. at 807. Facing a range of two to ten years, Martinez was

mistakenly advised on his written form of the possibility of a life sentence. Id. Thus, the written

admonishment that appellant signed indicated that the punishment to which he was exposed was

Aconfinement in prison for life or for any term of not more than 10 years or less than 2 years.@

Id. at 805. In admonishing Martinez, the trial court inquired as to whether appellant was aware

of the applicable punishment range in his case, but did not iterate the actual range of

imprisonment he faced. Id. at 807.

               But appellant=s reliance on Martinez is misplaced because it was reversed by the

court of criminal appeals. See Martinez v. State, 981 S.W.2d 195 (Tex. 1998). There, the court

held that when a record shows that the trial court delivered an incorrect admonishment regarding

the range of punishment, substantial compliance is attained so long as the actual sentence lies

within both the actual and misstated maximum. Id. at 197. Here, the actual sentence imposed

falls within the actual twenty-five to ninety-nine year punishment range and the admonished

sentence of fifteen to ninety-nine years. Thus, appellant must show harm different from the

actual sentence imposed.

               Appellant does not assert, nor is there any indication in the record, that he would

not have entered a guilty plea if the minimum length of imprisonment had been twenty-five

instead of fifteen years. Among the consequences of a violation of the conditions of deferred

adjudication supervision is an adjudication of guilt, after which assessment of punishment and

imposition of sentence continue as if adjudication had not been deferred. Tex. Code Crim. Proc.

Ann. art. 42.12, ' 5(b) (West Supp. 2002). Following the adjudication, then, the court may

assess any punishment within the range applicable to the offense. Robinson v. State, 739 S.W.2d


3
795, 801 (Tex. Crim. App. 1987); see also Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim.

App. 1996) (A[W]hen a prosecutor recommends deferred adjudication in exchange for a

defendant=s plea of guilty or nolo contendere, the trial judge does not exceed that

recommendation if, upon proceeding to an adjudication of guilt, he later assesses any

punishment within the range allowed by law.@). This is true even if the original guilty plea was

made pursuant to a plea agreement. Ditto v. State, 988 S.W.2d 236, 239-40 (Tex. Crim. App.

1999).

               The record at the initial plea of guilty indicates that there may have been some

confusion over the minimum sentence the offense, as enhanced, carried. It was defense counsel

who suggested that the court was mistaken as to the range and that, as an habitual offender,

appellant was exposed to fifteen to ninety-nine years. But appellant does not claim that he did

not know he could receive a minimum of twenty-five years. Nor does he assert that he was more

likely to plead guilty to an offense carrying a minimum sentence of fifteen years than twenty-

five. Appellant was sentenced within the range of punishment as admonished by the trial court.

We conclude that the district court substantially complied with the requirements of article

26.13.2



2
      The court=s docket sheet carried the correct range of punishment. In his closing argument at
the time of sentencing, the prosecutor stated: AIn the Court granting the deferred adjudication last
year, I believe the Defendant realized that if he didn=t follow the terms of the probation he was
looking at a minimum of 25 if he was revoked.@ Defense counsel then responded that the court
had two options: AOne option is to go ahead and sentence him to 25 to 99 or life. Option number
two would be to, on the Court=s own motion, to place him back on a deferred adjudication.@
While there is no indication that appellant saw the correct range on the docket sheet, there is
nothing in the record to indicate appellant was misled at the time of sentencing following his
revocation. Appellant made no request to withdraw his plea at the time of the revocation
hearing, nor did he file a motion for new trial. See Tex. R. App. P. 33.1(a).
4
                Without a showing that his guilty plea was actually induced by the

misinformation, appellant has not demonstrated harm that would entitle him to reversal. See

Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997). The record contains no evidence

that tends to show that appellant was actually harmed or misled in making his initial

determination to enter a guilty plea. He merely argues that the information was incorrectly

presented at his initial sentencing hearing.

                We conclude that appellant has not demonstrated that he relied on the incorrect

portion of the admonishment in choosing to enter a plea of guilty. We further conclude that the

trial court substantially complied with its admonishment requirements.     Appellant=s point of

error is overruled.


                                           CONCLUSION

                The judgment of conviction is affirmed.




                                               Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: January 10, 2002

Do Not Publish




5
