                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                 §
 MICHAEL DEWAYNE DAVIS,                                          No. 08-08-00125-CR
                                                 §
                   Appellant,                                       Appeal from the
                                                 §
 V.                                                           195th Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                           of Dallas County, Texas
                                                 §
                   Appellee.                                     (TC# F-0753628-N)
                                                  §

                                                  §

                                          OPINION

       Michael Davis was convicted of aggravated robbery with a deadly weapon, enhanced by

two prior felony convictions. He made an open plea of guilty to the offense, and pled true to

both enhancements. The trial court sentenced Appellant to 25 years’ imprisonment. He raises on

appeal a single issue that his plea was involuntary due to the trial court’s erroneous

admonishments regarding the range of punishment.

       Appellant was charged with aggravated robbery with a deadly weapon. The indictment

included two enhancement paragraphs stating that he had been twice convicted of felony offenses

prior to the current charges. Appellant entered into a plea agreement with the State, in which he

agreed to enter an open guilty plea to the aggravated robbery charge, and plead true to the

enhancement paragraphs. The court’s written admonishments, included in the plea bargain,

stated that Appellant was charged with a first degree felony offense, punishable by five to ninety-

nine years imprisonment.
       Appellant went before the court on January 18, 2008, and entered an open plea of “guilty”

to the charged offense, aggravated robbery with a deadly weapon. The court questioned

Appellant on his understanding of the range of punishment available for the charged offense, and

Appellant indicated he had discussed the potential range of punishment with his attorney.

Appellant confirmed that he was a citizen of the United States, and that he was competent, and

entered the plea freely and voluntarily. During direct examination by his attorney, Appellant

stated that he had been advised as a result of his open plea the trial court would have “the full

range of punishment available,” and that he could be sentenced to anything from probation to “25

years and beyond.”

       Sentencing was held on February 28, 2008. The court inquired whether Appellant was

aware that, in addition to the offense in the indictment, he was also charged with having two

prior felony convictions. Appellant stated that he understood the enhancement paragraphs

regarding his prior offenses, and plead “true” to both. The court accepted Appellant’s guilty

plea, as well as his plea to the enhancements, and following Appellant’s testimony regarding his

drug addition and desire to be placed in a treatment facility, sentenced Appellant to twenty-five

years’ imprisonment.

       In a single point of error, Appellant argues that the trial court failed to substantially

comply with its statutory duty to admonish him regarding the full range of punishment available

due to the conflict between the five-year minimum punishment included in the court’s written

admonishments, and the court’s verbal admonishment that the minimum punishment was twenty-

five years’ imprisonment. Based on this conflict, Appellant concludes he did not enter his plea

voluntarily, and requests that this Court reverse the conviction and remand the case for new trial.


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       Article 26.13(a)(1) of the Texas Code of Criminal Procedure requires a trial court to

admonish a defendant about the full punishment range associated with the charged offense before

accepting a plea of guilty, or non contendere. See TEX .CODE CRIM .PROC.ANN .

26.13(a)(1)(Vernon Supp. 2009); Hughes v. State, 833 S.W.2d 137, 139 (Tex.Crim.App. 1992).

An admonishment that substantially complies with the statutory requirement is sufficient. See

TEX .CODE CRIM .PROC.ANN . 26.13(c); Vannortrick v. State, 227 S.W.3d 706, 708

(Tex.Crim.App. 2007). When the record reflects the defendant was admonished under Article

26.13(a)(1), and that the punishment assessed was within the actual and stated range for the

offense, there is a prima facie showing that the defendant’s plea was voluntary even if the record

also demonstrates the admonishment itself was incorrect. Grays v. State, 888 S.W.2d 876, 878

(Tex.App.--Dallas 1994, no pet.). Once a substantial compliance is established, it is the

defendant’s burden to affirmatively demonstrate that he was both unaware of the consequences

of his plea, and that he was harmed by the court’s admonishment. See TEX .CODE

CRIM .PROC.ANN . 26.13(c); Grays, 888 S.W.2d at 878.

       While Article 26.13 is designed to protect a criminal defendant’s constitutional rights, the

admonishments themselves are not of constitutional magnitude, and a failure to comply with the

statute is non-constitutional error. See Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App.

1998). If the record does not demonstrate substantial compliance occurred, the defendant is

relieved of his burden, and harm will be presumed as a matter of law. See Whitten v. State, 587

S.W.2d 156, 158 (Tex.Crim.App. 1979).

       The State concedes that the trial court’s written admonishment, that the range of

punishment was five to ninety-nine years, or life was incorrect. See TEX .PENAL CODE ANN .


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§§ 12.32(a), 12.42(d)(Vernon Supp. 2009)(providing the sentencing range for aggravated robbery

is five to ninety-nine years, and increasing the minimum punishment to twenty-five years due to

the two enhancements). However, because Appellant was admonished regarding the punishment

range, and the punishment actually imposed was within the stated range for the offense, the trial

court substantially complied with the statute. See Singleton v. State, 986 S.W.2d 645, 651

(Tex.App.--El Paso 1998, pet. ref’d).

       Having concluded the trial court substantially complied with Article 26.13(a), it is

Appellant’s burden to demonstrate that he was unaware of the consequences of his plea, and

harmed by the claimed inconsistency. See Grays, 888 S.W.2d at 878. Appellant argues that the

trial court’s inconsistent admonishments regarding the minimum punishment, left Appellant to

speculate what the minimum was as though admonishment had not been provided at all. We do

not agree that Appellant’s assertion that he was “left to speculate” is sufficient to meet his

burden, or that it is supported by the record.

       An “affirmative” showing requires more than the defendant’s subjective assertion that he

did not understand the range of punishment available. See Sanchez v. State, 854 S.W.2d 677,

680-81 (Tex.App.--Dallas 1993, no pet.). Were we to hold, as Appellant advocates here, that a

trial court’s incorrect admonishment alone, was sufficient to meet Appellant’s burden, we would

effectively erase the “substantial compliance” standard from Article 26.13, thereby violating our

duty to interpret the laws as enacted by the Legislature. See State v. Mason, 980 S.W.2d 635,

638 (Tex.Crim.App. 1998). In addition, the record in this case demonstrates that Appellant

conferred with his lawyer regarding the range of punishment, that he understood the range to

include “[twenty-five] years, and beyond,” and that it was within the trial court’s discretion,


                                                 -4-
given Appellant’s open plea, to assess punishment anywhere within the allowable range. Having

concluded the trial court substantially complied with the requirements of Article 26.13(a)(1), and

that Appellant has not established he was unaware of the full range of punishment due to the trial

court’s incorrect written admonishment, there is no need to address the issue of harm.

       We therefore overrule Issue One, and affirm the trial court’s judgment.


April 21, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

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

(Do Not Publish)




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