                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00309-CR


JOHN MATTHEW SWEATMAN                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

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                        MEMORANDUM OPINION1
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      Appellant John Matthew Sweatman was indicted for the offense of felony

driving while intoxicated (DWI), having twice previously been convicted of DWI.

The indictment also alleged that Sweatman had used a deadly weapon—an

automobile—during the commission of the offense. Sweatman entered an open

plea of guilty to the offense and pleaded true to the first enhancement paragraph

alleged in the indictment.   The trial court admonished Sweatman about the

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       See Tex. R. App. P. 47.4.
consequences of his guilty plea, found him guilty, and found the first

enhancement paragraph true. After a punishment hearing, the trial court made

an affirmative finding of a deadly weapon and sentenced him to sixteen years’

confinement and a $5,000 fine. Sweatman appeals, arguing in a single issue

that the trial court failed to admonish him that a deadly weapon finding would

affect his eligibility for parole and that this failure caused his plea to be

involuntary.

         Texas Code of Criminal Procedure article 26.13 requires that the trial

court, prior to accepting a guilty plea, admonish the defendant of five things,

including ―the range of punishment attached to the offense.‖ Tex. Code Crim.

Proc. Ann. art. 26.13(a) (Vernon Supp. 2010).            Additionally, article 26.13

provides, ―No plea of guilty . . . shall be accepted by the court unless it appears

that the defendant is mentally competent and the plea is free and voluntary.‖ Id.

art. 26.13(b).

         Although Sweatman did not raise his argument in the trial court, complaints

that the trial court failed to give proper admonishments may be raised for the first

time on appeal. See Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App.

2007); Valdez v. State, 326 S.W.3d 348, 351 (Tex. App.—Fort Worth 2010, no

pet.).    However, contrary to Sweatman’s contention on appeal, article 26.13

contains no requirement that the trial court admonish a defendant that a deadly

weapon finding would affect his parole eligibility. See Tex. Code Crim. Proc.

Ann. art. 26.13. Parole eligibility is a collateral consequence of the entry of a


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guilty plea; a trial court is not required to admonish a defendant of the collateral

consequences of his guilty plea, and any failure to so admonish does not render

the plea involuntary. See Anderson v. State, 182 S.W.3d 914, 917–18 (Tex.

Crim. App. 2006) (holding that trial court is required to admonish defendant ―only

about those direct consequences that are punitive in nature‖); Ex parte Young,

644 S.W.2d 3, 4, 5 (Tex. Crim. App. 1983) (holding that parole eligibility is

collateral consequence of guilty plea), overruled on other grounds by Ex parte

Evans, 690 S.W.2d 274 (Tex. Crim. App. 1985); see also State v. Jimenez, 987

S.W.2d 886, 888 (Tex. Crim. App. 1999) (holding that guilty plea ―will not be

rendered involuntary by lack of knowledge as to some collateral consequence‖).

      Because parole eligibility is a collateral consequence of Sweatman’s guilty

plea, the trial court was not required to admonish him in that regard and its failure

to do so did not render Sweatman’s plea involuntary. See Bell v. State, 256

S.W.3d 465, 469 (Tex. App.—Waco 2008, no pet.) (so holding); Papke v. State,

982 S.W.2d 464, 467 (Tex. App.—Austin 1998, pet. ref’d, untimely filed)

(explaining that an affirmative deadly weapon finding affects only the defendant’s

parole eligibility, not the assessment of his punishment). Therefore, we overrule

Sweatman’s sole issue and affirm the trial court’s judgment.



                                                    SUE WALKER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.



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DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 21, 2011




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