                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 DERRIC CHARLES PHILLIPS,                        §
                                                                 Nos. 08-11-00165-CR
                             Appellant,          §
                                                                    Appeal from the
 v.                                              §
                                                                   89th District Court
                                                 §
 THE STATE OF TEXAS,                                           of Wichita County, Texas
                                                 §
                             Appellee.                               (TC# 46,445-C)
                                                 §


                                          OPINION

       Derric Charles Phillips (“Phillips”) appeals the trial court’s judgments convicting him of

one count of sexual assault of a child and one count of indecency with a child. He was sentenced

to 16 years’ imprisonment and a $2,500 fine on the sexual assault count and 10 years’

imprisonment and a $2,500 fine on the indecency count. The sentences were ordered to be served

consecutively. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       On the eve of his criminal trial, Phillips entered guilty pleas to the sexual assault and

indecency counts in open court outside the presence of the jury. Phillips had previously elected

the jury to determine his punishment. Following voir dire, the trial court asked Phillips if he

remained intent on pleading guilty. Phillips stated that he did, and subsequently pled guilty in

front of the jury before it considered the evidence in the punishment phase of the trial. The jury

subsequently recommended Phillips’ punishment and the trial court sentenced him accordingly,

choosing to cumulate Phillips’ sentences. At no point during the proceedings did the trial court
admonish Phillips as required by Article 26.13 of the Code of Criminal Procedure before accepting

his guilty pleas.

                                                 DISCUSSION

         Phillips raises two issues on appeal. In his first issue, he argues that the trial court’s

failure to admonish him of the punishment range that he faced on each count and of the

requirement that he would have to register as a sex offender before accepting his guilty pleas

rendered his pleas involuntary because he did not have the requisite information to make an

informed decision. In his second issue, Phillips argues that the trial court’s decision to cumulate

his sentences without having to satisfy an articulated burden of proof, as currently permitted by

Article 42.08(a) of the Code of Criminal Procedure, violates his Sixth Amendment right that the

sentence imposed not be greater than that authorized by the jury’s fact-finding.

                                             Failure to Admonish

                                            1. Punishment Ranges

         The State concedes that the trial court failed to admonish Phillips of the punishment range

that he faced for each count before accepting his guilty pleas as was statutorily required.1 See

TEX.CODE CRIM.PROC.ANN. art. 26.13(a)(1)(West Supp. 2011). Having reviewed the

record, we agree. Nevertheless, the State argues that because Phillips was well aware of the

applicable punishment range, he suffered no harm.2 If the record supports the inference that

Phillips was unaware of the range of punishment for each count he faced and his ignorance

1
  Here, the range of punishment for sexual assault of a child count is imprisonment for not more than 20 years or less
than 2 years and assessment of a fine of up to $10,000. See TEX.PEN.CODE ANN. §§ 22.011(f); 12.33 (West 2011).
The range of punishment for the indecency with a child count is imprisonment for not more than 10 years or less than
2 years and assessment of a fine of up to $10,000. See id. at §§ 21.11(d); 12.34 (West 2011).
2
  Both Phillips and the State agree that the trial court’s failure to admonish Phillips on the range of punishment is
non-constitutional error subject to harm analysis pursuant to Rule 44.2(b) of the Texas Rules of Appellate Procedure.
See TEX.R.APP.P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002).
                                                          2
materially affected his decision to plead guilty, Phillips was harmed by the trial court’s failure to

admonish. See Burnett v. State, 88 S.W.3d 633, 638-39, 641 (Tex.Crim.App. 2002). However,

if the record supports the inference that Phillips was aware of the range of punishment for each

count he faced, Phillips was not harmed by the trial court’s failure to admonish. See id.

         The record is replete with evidence that supports the inference that Phillips was aware of

the range of punishment for each count he faced. The voir dire was held in open court and in

Phillips’ presence. One of the primary topics discussed during voir dire was the applicable range

of punishment and the prospective jurors’ capacity to assess punishment. When the prosecutor

was addressing the prospective jurors, she explained to them the range of punishment for each

count:

                 The punishment range in Texas for most offenses is very broad. . . .
         [A]nd the punishment range also covers a lot of -- is -- is very broad so that all of
         those things that fall within that particular offense can be punished appropriately.

                 For a sexual assault, the punishment range is from two to twenty years and
         up to a $10,000 fine. And for indecency with a child, it’s two to ten years and a
         $10,000 fine. Both of these may, in some case be eligible for probation if the
         person has not previously been convicted of a felony.

Following this explanation, the prosecutor then asked each prospective juror individually if he or

she could consider the full range of punishment. In an exchange with the prosecutor, one

prospective juror specifically mentioned the 20-year maximum sentence applicable to the sexual

assault count when asking the prosecutor about probation:

         VENIREMAN MELTON: I have a question. Are you saying that we can -- that
         we would -- if they were convicted of sexual assault that we could give them
         probation all of the way up to 20 years or –

         THE PROSECUTOR: That’s your range of punishment. Can you consider the
         full range?


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When Phillips’ counsel was addressing the prospective jurors, he specifically stated that the

punishment range for aggravated sexual assault was inapplicable, and then, minutes later,

mentioned the punishment ranges that were applicable:

       That’s aggravated sexual assault. The range of punishment on that would be five
       to life, so those don’t -- those cases are extreme cases and don’t fit really our
       offenses here, okay?

                                       .          .          .

               All right. Range of punishment . . . . Both the State and the Defendant are
       entitled to jurors who can consider the full possible range of punishment from the
       minimum to the maximum. In other words from the minimum of two years on
       both offenses, the sexual assault or indecency with a child, or the maximum of ten
       years on indecency with a child, the exposure case, or 20 years in the sexual assault
       case, okay?

              So you have to be able to consider as little as two years and then a 10 and a
       20 on the other -- on the two offenses, okay?

Following voir dire, the trial court admonished Phillips twice that he had a right to have the jury

determine his guilt or innocence on both counts, but Phillips remained steadfast that he wanted to

plead guilty.

       After the close of evidence at punishment and before closing arguments, the trial court read

its charge to the jury. In its charge, the trial court detailed the applicable range of punishment for

each count Phillips faced. Immediately after the charge was read to the jury, the prosecutor

mentioned the applicable punishment ranges again, and minutes later, asked the jury to impose the

maximum sentences allowable:

               I want to talk to you briefly about the Charge that the Judge just read to you.
       There on the first page, you have the range of punishment that we discussed during
       voir dire. For Count I it’s somewhere from two to twenty years and that fine up to
       $10,000. In Count II, it’s anywhere from two to ten years and that fine up to
       $10,000.


                                                  4
                                              .                  .                   .

         I ask you to go back in that jury room and get justice for Mark. And I ask you to go
         back in the jury room and give Derric 20 years on Count I and 10 years on Count II
         ....

         Despite the repeated references to the punishment range applicable to each offense and the

opportunity to reconsider whether to plead guilty, Phillips did not object or attempt to withdraw his

pleas at any time during voir dire or before punishment. Likewise, although given the

opportunity to object to the trial court’s charge after voir dire and before punishment, Phillips did

not do so. Furthermore, Phillips never raised any issue regarding the trial court’s failure to

admonish him on the punishment ranges at sentencing or in the subsequently-filed motion for new

trial. We conclude that the trial court’s failure to admonish Phillips of the applicable punishment

range that he faced on each count was harmless error and did not render his pleas involuntary.

                                          2. Sex Offender Registration

         The State also concedes that the trial court failed to admonish Phillips that he would have

to register as a sex offender before accepting his guilty pleas as was statutorily required. See

TEX.CODE CRIM.PROC.ANN. art. 26.13(a)(5). Having reviewed the record, we agree.

Nevertheless, as the State correctly points out, Article 26.13(h) of the Code of Criminal Procedure

specifically precludes us from setting aside Phillips’ convictions, sentences, or pleas on this basis.3

See TEX.CODE CRIM.PROC.ANN. art. 26.13(h); Morin v. State, 340 S.W.3d 816, 817-18

(Tex.App.--San Antonio 2011, pet. ref’d)(applying Article 26.13(h) to dispose of appellant’s


3
  Even if Article 26.13(h) were inapplicable, the record is replete with evidence that Phillips knew that he would be
required to register as a sex offender. The most revealing is Phillips’ own admissions at the punishment phase of the
trial. In response to his counsel’s question, Phillips testified affirmatively that he understood the ramification that, by
pleading guilty, he was “going to be a registered sex offender for the rest of [his] life . . . .” Also, during closing
arguments, Phillips’ counsel reiterated that Phillips would be a registered sex offender for the rest of his life
irrespective of whether he received probation.

                                                            5
argument that he was entitled to a new trial because the trial court failed to admonish him of

required sex offender registration). Article 26.13(h) forecloses Phillips’ attempt to set aside the

trial court’s judgments on the basis that he was not admonished that he would have to register as a

sex offender.

         Phillips’ first issue is overruled.

                                    Imposition of Consecutive Sentences

         Phillips cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), as support for his argument that the trial court’s decision to cumulate his sentences violated

his Sixth Amendment right that the sentence imposed not be greater than that authorized by the

jury’s fact-finding. However, as Phillips acknowledges in his brief, the Texas Court of Criminal

Appeals rejected this same argument in Barrow v. State, concluding that Apprendi and its progeny

were inapplicable since they did not address a trial court’s authority to cumulate sentences when

that authority is provided by statute and is not based upon discrete fact-finding, but is wholly

discretionary.4 See 207 S.W.3d 377, 380 (Tex.Crim.App. 2006). Phillips nonetheless posits that

Barrow was wrongly decided and invites us to revisit the issue. We decline to do so.

         Accordingly, Phillips’ second issue is overruled.

                                                 CONCLUSION

         Having overruled both of Phillips’ issues, we affirm the judgment of the trial court.




4
  Phillips also cites Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), as additional support for his
argument. However, Ice is inapposite. The issue in Ice was not whether the trial court was required to engage in
fact-findings to justify imposing consecutive sentences, but whether it was constitutionally permissible for the trial
court, rather than the jury, to engage in fact-findings to justify imposing consecutive sentences. See id. at 164,129
S.Ct. at 714-15. This is not the issue here, and even if it were, the Supreme Court held in Ice that it was
constitutionally permissible for the trial court, rather than the jury, to engage in such fact-finding. See id.
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May 16, 2012
                                                      CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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