Opinion issued June 20, 2019




                                     In The

                              Court of Appeals
                                     For The

                         First District of Texas
                           ————————————
                              NO. 01-18-00448-CR
                           ———————————

                       ROLAND D. DEMPS, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee



                  On Appeal from the 396th District Court
                          Tarrant County, Texas1
                      Trial Court Case No. 1505983D




1
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred this appeal to this Court. See TEX. GOV’T CODE § 73.001 (authorizing
     transfer of cases).
                          MEMORANDUM OPINION

      Appellant, Roland D. Demps, pleaded guilty, without an agreed

recommendation from the State regarding punishment, to the felony offense of

driving while intoxicated (“DWI”), third or more offense.2 The indictment contained

an enhancement paragraph, alleging that appellant had been previously convicted of

the felony offense of possession of a controlled substance, namely,

methamphetamine, weighing at least 4 grams.3 The trial court found appellant guilty

of the primary offense and found the enhancement true. Following a presentence

investigation, the trial court assessed appellant’s punishment at confinement for five

years. In his sole issue, appellant contends that the trial court erred by failing to

admonish him as to the range of punishment applicable to his offense, which

rendered his guilty plea involuntary.

      We affirm.

                                    Background

      Appellant was indicted for the offense of driving while intoxicated, third or

more, enhanced by a prior felony conviction for possession of a controlled substance.

      On March 13, 2018, in its “Written Plea Admonishments,” the trial court

stated as follows:



2
      See TEX. PENAL CODE §§ 49.04, 49.09(b)(2).
3
      See TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.115(d).
                                          2
      1. You are charged with the felony offense of DWI 3rd or More.
      ....
      3. If convicted of the above offense, you face the following range of
         punishment:
          ....
          THIRD DEGREE FELONY ENHANCED: Imprisonment for a
          term of not more than 20 years or less than 2 years in the Texas
          Department of Criminal Justice; and in addition, a fine not to exceed
          $10,000 may be assessed.
          ....
          OTHER: Plea true to enhancements
      ....

      7. No Plea Agreement (Open Plea): If you have plead guilty without
         [the] benefit of a plea agreement, the plea proceeding is your trial.
         Should the Court find you guilty, your punishment can be set
         anywhere within the range of punishment prescribed by law for the
         offense.

      In the same document, immediately after the plea admonishments, the

“Written Waivers of Defendant—Joined by Attorney,” reflect that appellant, in open

court and joined by his attorney, stated:

      (A)    . . . . I fully understand each of the above written plea
             admonishments given by the Court and I have no questions. . . .
      (B)    I give up and waive arraignment and formal reading of the
             indictment . . . . ;
      (C)    I am aware of the consequences of my plea;
      (D)    I am mentally competent and my plea is knowingly, freely, and
             voluntarily entered. No one has threatened, coerced, forced,
             persuaded or promised me anything in exchange for my plea;
      ....
      (P) I give up and waive the attendance and record of a court reporter
           under Rule 13.1, Texas Rules of Appellate Procedure[.]

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Appellant and his attorney each signed the plea admonishments and waivers.

Appellant also signed a “Judicial Confession,” in which he admitted his guilt in the

primary offense, as alleged in the indictment, and that the “enhancement and habitual

allegations set forth in the indictment are true and correct.”

       At the end of the document, along with the trial court’s signature, appears the

following: “The Court has given the Defendant the admonishments set out in

paragraphs numbered 1 through 17, above. In addition, the Court finds that the

defendant is mentally competent and that his plea is intelligently, freely and

voluntarily entered. . . .”

       At the sentencing hearing, on May 3, 2018, the trial court stated:

       Let the record reflect that on March 13th of this year [2018] the
       defendant came to court, pled guilty to the offense of driving while
       intoxicated-felony repetition. The Court accepted the defendant’s plea
       and ordered that a Presentence Investigation Report be compiled by the
       Community Supervision and Corrections Department. The defendant
       also pled true to the Repeat Offender Notice in the indictment. . . .

The trial court found appellant guilty, noted that it had reviewed the presentence

report, and sentenced appellant to confinement for five years.

                                Plea Admonishments

       In his sole issue, appellant argues that his plea was involuntary because the

trial court failed to admonish him as to the range of punishment applicable to his

offense.

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Standard of Review and Principles of Law

      A defendant’s decision to forgo a jury trial and to enter a guilty plea is

afforded constitutional protections, including a requirement that the plea result from

a voluntary and knowing relinquishment of a known right. McCarthy v. United

States, 394 U.S. 459, 466 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App. 2006); Hampton v. State, 435 S.W.3d 303, 306 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d). Texas Code of Criminal Procedure article 26.13 specifies

the admonishments that a trial court must make before accepting a guilty plea. TEX.

CODE CRIM. PROC. art. 26.13; Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim.

App. 1985). Included in those requirements is that the trial court admonish the

defendant as to the range of punishment applicable to the offense charged. TEX.

CODE CRIM. PROC. art. 26.13(a)(1). The trial court may make the admonitions either

orally or in writing. Id. art. 26.13(d). If it does so in writing, it must receive a

statement signed by the defendant and his attorney that the defendant understands

the admonitions and is aware of the consequences of his plea. Id.

      Substantial compliance with the statute 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. art. 26.13(c). A

record reflecting that the statutory admonishments were given constitutes a prima

facie showing that the defendant knowingly and voluntarily entered his plea.

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Harrison, 688 S.W.2d at 499. A defendant who attests that he understands the nature

of his plea and that his plea was voluntary carries a “heavy burden” on appeal to

establish that his plea was involuntary. Edwards v. State, 921 S.W.2d 477, 479 (Tex.

App.—Houston [1st Dist.] 1996, no pet.).

      An erroneous plea admonition constitutes non-constitutional error, which

requires reversal only if the failure affected the defendant’s substantial rights. See

TEX. R. APP. P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App.

2002) (explaining substantial-rights standard in voluntariness-of-plea case). The

reviewing court must examine the entire record to determine whether, on its face, it

suggests that the defendant did not know the consequences of his plea. Burnett, 88

S.W.3d at 638. A record that is silent on the issue of the range of punishment would

reasonably support an inference that the defendant did not know the consequences

of his plea. Id. However, if a record shows that the trial court “delivered an incorrect

admonishment regarding the range of punishment, and the actual sentence lies within

both the actual and misstated maximum, substantial compliance is attained.”

Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Mitchell v. State,

No. 01-15-00249-CR, 2016 WL 888147, at *2 (Tex. App.—Houston [1st Dist.] Mar.

8, 2016, pet. ref’d) (mem. op., not designated for publication).

      Texas Penal Code section 49.04 prohibits a person from operating a motor

vehicle in a public place while in a state of intoxication.        TEX. PENAL CODE

                                           6
§ 49.04(a). Generally, an offense under this section is classified as a Class B

misdemeanor. Id. § 49.04(b). However, if the State also proves that a defendant has

been twice previously convicted of an offense related to operating a motor vehicle

while intoxicated, an offense under section 49.04 is classified as a third-degree

felony. See id. § 49.09(b)(2); Gibson v. State, 995 S.W.2d 693, 695–96 (Tex. Crim.

App. 1999) (holding that “prior intoxication-related offenses are elements of the

offense of driving while intoxicated,” “define the offense as a felony,” and are

“admitted into evidence as part of the State’s proof of its case-in-chief during the

guilt-innocence stage of the trial”). The punishment range for a third-degree felony

is confinement for a term of two to ten years and a fine of up to $10,000. TEX. PENAL

CODE § 12.34.

      In addition, the range of punishment may be enhanced by other prior felony

convictions. See id. § 12.42(d); Gibson, 995 S.W.2d at 696. Such prior felony

convictions are not admitted into evidence until the punishment stage of a trial, after

the defendant has been convicted of the primary felony offense. Gibson, 995 S.W.2d

at 696 (explaining that “prior intoxication-related convictions serve the purpose of

enhancing the offense in Section 49.09(b), whereas prior convictions used in Section

12.42(d) serve the purpose of enhancing punishment”).

Analysis




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      Here, the record shows that appellant was indicted for the offense of DWI,

third or more, which constitutes a third-degree felony. See TEX. PENAL CODE

§ 49.09(b)(2).   In the indictment, the State presented allegations concerning

appellant’s previous DWI convictions. The State also alleged that appellant was

previously convicted of a felony offense of possession of a controlled substance,

weighing at least 4 grams. See TEX. HEALTH & SAFETY CODE § 481.115 (classifying

possession of controlled substance, weighing at least 4 grams but less than 200

grams, as second-degree felony).

      With exceptions not applicable here, if it is shown on the trial of a third-degree

felony that the defendant has previously been convicted of a felony, the defendant

“shall be punished for a felony of the second degree.” TEX. PENAL CODE § 12.42.

The punishment range applicable to a second-degree felony is imprisonment for a

term of two to 20 years and a fine of up to $10,000. TEX. PENAL CODE § 12.33.

Thus, here, if convicted, appellant was subject to a punishment range of confinement

for two to twenty years and a fine of up to $10,000. See id.

      The record shows that, in its “Written Plea Admonishments,” the trial court

accurately admonished appellant in writing as to the punishment range applicable to

his offense as follows: “If convicted of the above offense, you face the following

range of punishment: . . . Imprisonment for a term of not more than 20 years or less

than 2 years in the Texas Department of Criminal Justice; and in addition, a fine not

                                          8
to exceed $10,000 may be assessed.” See TEX. CODE CRIM. PROC. art. 26.13(a)(1),

(d) (providing that trial court may admonish defendant either orally or in writing).

      After the admonishments appears: “Comes now the Defendant, in open Court,

joined by my attorney and states: . . . I fully understand each of the above written

plea admonishments given by the Court and I have no questions,” and “I am aware

of the consequences of my plea.” Appellant and his attorney signed underneath.

Thus, the trial court received a signed statement that appellant understood the

admonitions and consequences of his plea. See id. art. 26.13(d) (providing that if

trial court makes admonitions in writing, “it must receive a statement signed by the

defendant and [his] attorney that [the defendant] understands the admonitions and is

aware of the consequences of his plea.”).

      Appellant’s statement is followed by his Judicial Confession and additional

signature. Finally, the document states, in pertinent part: “The Court has given the

Defendant the admonishments set out in paragraphs numbered 1 through 17, above.”

And, the trial court’s signature appears.       It is undisputed that the Written

Admonishments were given on the same day that appellant entered his plea.

Appellant waived his right to have a court reporter record his plea. See Cantu v.

State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist] 1999, pet. ref’d)

(holding defendant who waived court reporter and received written admonishments

could not show plea was involuntary).

                                            9
      Appellant argues that his plea was involuntary because the written plea

admonishment form “does not have a place for the defendant to sign to so indicate

that he has, in fact, been admonished as to the range of punishment” and “the form

does not have a place for the Judge of the trial court to sign which would show [that]

the defendant was properly apprised of the range of punishment as to the offense.”

As discussed, the record does not support appellant’s argument.

      Appellant further asserts that the trial court erred by not asking him on the day

of sentencing if he “understood the punishment range” or “wished to withdraw his

plea.” “There is no requirement that the judge orally admonish a defendant when

the defendant has signed written admonishments, statements, or waivers, and it is

established that he understood them.” Willhite v. State, No. 2-08-269-CR, 2009 WL

2356998, at *2 (Tex. App.—Fort Worth July 30, 2009, pet. ref’d) (mem. op., not

designated for publication) (discussing TEX. CODE CRIM. PROC. art. 26.13(d)); see

Scott v. State, 86 S.W.3d 374, 375–76 (Tex. App.—Fort Worth 2002, no pet.); Lee

v. State, 39 S.W.3d 373, 375 n.1 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

Thus, having previously admonished appellant in accordance with article 26.13 prior

to receiving his plea, the trial court was not required to further question appellant

about the voluntariness of his plea. See Edwards, 921 S.W.2d at 480–81 (holding

that, after written admonishments given in accordance with article 26.13, trial court




                                         10
not required to further question defendant about his understanding of

admonishments and voluntariness of plea).

      We conclude that the trial court properly admonished appellant regarding the

applicable range of punishment. Because the trial court complied with the statutory

requirements, we hold that appellant has not shown that his plea was involuntary.

      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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